SMU Law Review
Manuscript 1599
Family Law: Parent and Child
Richard R. Carlson
James W. Paulsen
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FAMILY LAW: PARENT AND CHILD
Richard R. Carlson*
James W. Paulsen**
TABLE OF CONTENTS
I. FEDERAL COURT DEVELOPMENTS: THE
CONSTITUTIONALITY OF THE CHILD SUPPORT
RECOVERY ACT OF 1992 ..............................
II. STATU S ..................................................
III. CONSERVATORSHIP ...................................
IV . SU PPO RT ................................................
V. ADOPTION AND TERMINATION .....................
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1243
1250
1259
1269
HE past year has been a relatively quiet one in family law, so far
as Texas judicial developments go. Practitioners doubtless welcome this period of calm, as it frees a little time to memorize the
new location of statutes that were shuffled and renumbered in wholesale
lots during the 1995 biennial legislative session. This is not to say that the
Texas Supreme Court or courts of appeal have been silent on family law
topics; to the contrary, a half dozen supreme court opinions of interest
issued during the Survey period. However, the single most interesting
family law opinion, and the one with which this Survey begins, issued
from a federal district court.
I. FEDERAL COURT DEVELOPMENTS: THE
CONSTITUTIONALITY OF THE CHILD SUPPORT
RECOVERY ACT OF 1992
The Child Support Recovery Act of 1992 (CSRA)1 makes it a federal
offense to "willfully fail[ ] to pay a past due support obligation with respect to a child who resides in another State. ' '2 A past due support obligation, for purposes of the act, is any unpaid amount greater than $5000
or owing for more than one year. 3 The statute, passed with some fanfare
by the Bush administration, also is a favorite of the Clinton administration. It is, nonetheless, somewhat controversial. In what is probably the
* B.A., Wake Forest University; J.D., University of Georgia. Professor of Law,
South Texas College of Law.
** B.F.A., Texas Christian University; J.D., Baylor University; LL.M., Harvard Uni-
versity. Associate Professor of Law, South Texas College of Law.
1. 18 U.S.C. § 228 (1994).
2. Id. § 228(a).
3. Id. § 228(d)(1).
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most dramatic challenge to the act's legality, 4 a Texas doctor and selfstyled "freeman" holed up at his mother's Coushatta, Louisiana, home to
contest a CSRA indictment. The confrontation ended peacefully, but
only after the family dog was shot while assaulting a police officer and
members of "patriot" groups from several states, including the "Texas
Constitutional Militia," rallied to the doctor's cause.
Oddly enough, militia members and "freemen" who claim the Child
Support Recovery Act is unconstitutional can point to some mainstream
support for their position. In 1995, an Arizona federal district court de-
clared the CSRA invalid on Commerce Clause 5 and comity grounds. 6 In
United States v. Bailey,7 United States District Judge Fred Biery of San
Antonio followed suit. 8 A few days after the Texas ruling, a Pennsylvania
federal court also declared the CSRA unconstitutional. 9 The Arizona,
Texas and Pennsylvania courts based their conclusions primarily on the
United States Supreme Court's recent five-to-four decision in United
States v. Lopez,' 0 In Lopez, a case which also originated in San Antonio,
Texas,11 the Supreme Court invalidated on Commerce Clause grounds a
part of the Gun-Free School Zones Act of 1990,12 which made it a federal
offense to knowingly possess a firearm in a school zone. 13
In past cases, the Supreme Court has utilized a two-pronged test to
determine whether the Congress has acted within its Commerce Clause
authority: (1) whether there is a rational basis for the conclusion that the
regulated activity sufficiently affects interstate commerce, and (2)
whether the specific regulation is reasonably adapted to the constitutionally permitted goals. 14 In Lopez, the first decision in more than fifty
years in which the Court invalidated an act of Congress on Commerce
Clause grounds, 15 Chief Justice Rehnquist detailed three areas legiti4. The story was reported extensively. For useful summaries, see Kim Cobb, Armed
or Not, Militia Response Raises New Fears, Hous. CHRON., Mar. 3, 1996, at Al; Richard
Leiby, PotentialFlash PointDefused in Louisiana;Standoff Reflects Lessons of Ruby Ridge,
Waco, WASH. POST, Mar. 2, 1996, at A3. The doctor eventually was convicted and ordered
to pay more than $90,000 past due child support. Tim Bryant, Doctor's Verdict Demonstrates Child Support Push, Dowd Says, ST. Louis POST-DISPATCH, June 6, 1996, at 14A.
5. U.S. CONST. art. I, § 8, cl.
3 (stating that "the Congress shall have power to regulate Commerce ...among the several States...").
6. See United States v. Schroeder, 894 F. Supp. 360 (D. Ariz. 1995), rev'd sub nom.,
United States v. Mussari, 95 F.3d 787 (9th Cir. 1996); see also United States v. Mussari, 894
F. Supp. 1360 (D. Ariz. 1995), rev'd, 95 F.3d 787 (9th Cir. 1996).
7. 902 F. Supp. 727 (W.D. Tex. 1995).
8. District Judge Biery quoted approvingly from the Arizona Mussariopinion. Id. at
729 (citing Mussari, 894 F. Supp. at 1367).
9. United States v. Parker, 911 F. Supp. 830 (E.D. Pa. 1995).
10. 115 S.Ct. 1624 (1995).
11. Lopez involved a senior at San Antonio's Edison High School who was arrested
for carrying a .38 caliber handgun on the school grounds. See United States v. Lopez, 2
F.3d 1342, 1345 (5th Cir. 1993), affd, 115 S.Ct. 1624 (1995).
12. 18 U.S.C. § 922(q) (1994).
13. Id. § 922(q)(2)(A)(1994).
14. See, e.g., Hodel v. Virginia Surface Mining & Reconstruction Ass'n, 452 U.S. 264,
265 (1981).
15. United States v. Lewis, 936 F. Supp. 1093, 1096 (D.R.I. 1996)
PARENT AND CHILD
1997]
1239
mately subject to congressional regulation: (1) the channels of interstate
commerce; (2) instrumentalities, persons or things in interstate commerce; or (3) activities having a substantial relation to interstate commerce. 16 The Lopez Court reasoned that the Gun-Free School Zones
Act did not regulate an economic activity, contained no jurisdictional requirement of an interstate nexus, and17had no legislative history detailing
a connection to interstate commerce.
Dicta in the Lopez majority opinion seemed to make federal regulations affecting the family particularly vulnerable to invalidation on Commerce Clause grounds. Chief Justice Rehnquist stated that if the Court
were to recognize Congressional regulatory power any time national productivity was affected, then Congress could regulate even such "family
law" activities as "marriage, divorce and child custody."' 18 The principal
dissenting opinion did not argue the point, but stated that "[t]o hold this
statute constitutional is not to ...hold that the Commerce Clause permits
the Federal Government to ...regulate marriage, divorce, and child custody."' 19 Thus, it is not surprising that one scholarly writer has provided a
list of federal enactments affecting family law-statutes such as the Parental Kidnapping Prevention Act of 1980,20 the Child Support Enforcement Act 2' and the Child Abuse Prevention and Treatment Act22-that
23
are vulnerable to constitutional challenge in the post-Lopez world.
And it is not surprising that Judge Biery concluded: "[G]iven the language and guidance of the Lopez majority, a reasonable inference can be
made that the Supreme Court would also find constitutionally infirm
Congress' attempt to regulate the family law relationship of Mr. and Ms.
'24
Bailey.
Judge Biery bolstered his analysis with two less substantial subsidiary
arguments: comity and the domestic relations exception to federal jurisdiction. While the court's reasoning is not altogether clear, Bailey does
mention the Younger 2 5 abstention doctrine as a reason to refrain from
"interference" with state court custody determinations. 26 It is difficult to
16. 115 S. Ct. at 1629-30.
17. Id. at 1631-32.
18. Id. at 1632.
19. Id. at 1661 (Breyer, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ.).
20. 28 U.S.C. § 1738A (1994).
21. 42 U.S.C. §§ 651-669 (1994).
22.
23.
24.
25.
42 U.S.C. §§ 5101-5106h (1994).
Anne C. Dailey, Federalismand Families. 143 U. PA. L. REV. 1787, 1788 n.1 (1995).
Bailey, 902 F. Supp. at 728.
Younger v. Harris, 401 U.S. 37 (1971). In Younger, the United States Supreme
Court disapproved issuance of a federal injunction to prevent state prosecution under the
California Criminal Syndication Act. Speaking for the Court, Justice Black stated that the
injunction "must be reversed as a violation of the national policy forbidding federal courts
to stay or enjoin pending state court proceedings except under special circumstances." Id.
at 41. The decision also was grounded in principles of comity or "Our Federalism," defined
by Justice Black as a belief that "the National Government will fare best if the states and
their institutions are left free to perform their separate functions in their separate ways."
Id. at 44.
26. Bailey, 902 F. Supp. at 729.
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see what "interference" would be present if a federal court lent its weight
to enforcement of state child support laws. 27 Moreover, as one critical
commentator on Bailey has pointed out that "notions of federalism and
comity ...alone have never been used to declare an act of Congress to be
unconstitutional. ' 28 District Judge Biery's reliance on the domestic relations exception to federal jurisdiction also is questionable. The domestic
relations exception to general "federal question" jurisdiction is grounded
more in tradition and statutory construction than in the Constitution, 29
does not exclude all family law cases, 30 and surely could be "trumped" by
31
a specific jurisdictional statute.
Indeed, a substantial part of Judge Biery's rationale appears to be
based more on public policy grounds than on strictly constitutional considerations. The Bailey opinion notes that states have several effective
27. Accord United States v. Ganaposki, 930 F. Supp. 1076 (M.D. Pa. 1996). The Ganaposki court stated:
The CSRA does not violate the principles of comity and federalism because it does not displace any approach taken by the states. In fact, it furthers the approach taken by the states in furthering the enforcement of state
court decrees. In addition, the CSRA goes no further than the enforcement
of state court decrees and is not an attempt by Congress to legislate with
respect to the amount of child support payments in any particular case; any
ruling that support must be paid and the amount to be paid is left to the
states.
Id. at 1083.
28. Amy E. Watkins, Comment, The Child Support Recovery Act of 1992: Squeezing
Blood From a Stone, 6 SETON HALL CONST. L.J. 845, 873 & 873 n.186 (1996); see also
United States v. Hopper, 899 F. Supp. 389, 393 (S.D. Ind. 1995)(stating that "this Court can
find no case where those 'principles' [of federalism and comity] were held to be grounds to
declare an act of Congress unconstitutional").
29. The doctrine was first stated, though without any citation to authority, in Barber v.
Barber,62 U.S. 582 (1858). The most recent detailed exposition of the doctrine is found in
Ankenbrandt v. Richards, 504 U.S. 689 (1992). Ankenbrandt held that claims of intra-familial tort triable in federal diversity courts, but nonetheless reaffirmed the domestic relations exception, in large part because Congress had not acted to amend the diversity
statute after Barber. Justice White justified the doctrine in part because issuance of divorce, alimony or child custody decrees "not infrequently involves retention of jurisdiction
by the court and deployment of social workers to monitor compliance." Ankenbrandt, 504
U.S. at 703-04.
30. Many statutes touch on family law without regulating marriage, divorce and child
custody laws. E.g., Judith Resnick, "Naturally" Without Gender: Women, Jurisdiction,and
the Federal Courts, 66 N.Y.U. L. REV. 1682, 1721-29 (1991) (describing the impact of federal welfare, tax, bankruptcy and pension law on families). A useful distinction therefore
can be drawn between "core" and "peripheral" domestic relations cases. See Barbara A.
Atwood, Domestic Relations Cases in FederalCourt: Toward a PrincipledExercise of Jurisdiction, 35 HASTINGS L.J. 571, 603 (1984).
31. See, e.g., United States v. Hampshire, 892 F. Supp. 1327, 1330 (D. Kan. 1995) (stating that "because the domestic relations exception is rooted in a narrow construction of the
diversity jurisdiction statute, . . . the rule has no application where there exists an independent basis for federal jurisdiction beyond diversity of citizenship"), affd, 95 F.3d 999
(10th Cir. 1996), cert. denied, 117 S.Ct. 753 (1997); Rebecca A. Wistner, Comment, Abusing the Power to Regulate: The Child Support Recovery Act of 1992, 46 CASE W. RES. L.
REV. 935, 948 (1996) (stating that "[tihe domestic relations exception is an exception to
diversity jurisdiction ...,not federal question jurisdiction" and concluding that "where
Congress regulates a matter of domestic relations through the Commerce Clause, the exception does not apply").
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PARENT AND CHILD
1241
remedies for collecting support from absent parents, 32 and speculates that
strict enforcement of the statute would only result in a large number of
suspended sentences because child support obligors cannot earn the
money to pay past due support while in jail.33 Judge Biery also expressed
some doubt about using "limited federal law enforcement and judicial
resources as a debt collection agency," doubtlessly reinforcing the perception of those who believe some federal judges "sense that this work is
insignificant docket-clutter beneath [their] dignity."'34 One commentator,
in fact, has taken Judge Biery to task for this language, stating that "the
Bailey court had no authority to act as a superlegislature and declare [the
CSRA] to be invalid simply because it does not think it was a wise policy
choice. ' '35 While the comment may be a bit strong, Judge Biery did invite
criticism by using a somewhat flippant tone in several parts of the
36
opinion.
At the time that Bailey issued from the Western District of Texas, there
were only three district court decisions on the CSRA-all negative. A
circuit split at the district court level soon developed, with four other circuits ruling in favor of the Act's constitutionality. 37 In February 1996, at
a law review symposium on post-Lopez developments, one speaker predicted that the Bailey appeal-like the San Antonio decision in Lopezwould result in the Fifth Circuit issuing the first circuit ruling on a major
Commerce Clause issue. 38 Whether because the Fifth Circuit is a little
bashful after its successful prediction in Lopez or otherwise, this prediction has not borne out. At the time this Survey went to press, no appellate ruling on Bailey was forthcoming.
In the interim, the appellate box score has shifted markedly in favor of
the constitutionality of the CSRA and against the Bailey court's reason32. A list of Texas statutes is set out in the opinion. See Bailey, 902 F. Supp. at 729-30.
33. Id. at 728.
34. Ann Althouse, Federalism, Untamed, 47 VAND. L. REV. 1207, 1210 (1994).
35. Kathleen A. Burdette, Comment, Making Parents Pay: Interstate Child Support
Enforcement After United States v. Lopez, 144 U. PA. L. REV. 1469, 1514 (1996).
36. The opinion begins with the sentence: "Once upon a time, Keith and Lisa Bailey
were, or at least thought they were, in love." Bailey, 902 F. Supp. at 727. It ends with a
vague comment that "there may be other bases by which to challenge the constitutionality"
of the statute and states the court's "humble opinion" that the CSRA is invalid. Id. at 730.
37. See Malcolm Stewart, University of Idaho College of Law Federalism Symposium:
IV. United States v. Lopez: A Governmental Perspective, 32 IDAHO L. REV. 519, 522
(1996)(summarizing the state of case law on the CSRA in February 1996 and concluding,
"it seems fairly likely that this could be the first post-Lopez statute to generate a circuit
conflict" regarding the scope of Congress' power under the Commerce Clause).
District court opinions upholding the constitutionality of the CSRA initially issued from
courts in the Second, Fourth, Seventh, and Tenth Circuits. See Hopper, 899 F. Supp. at 393.
United States v. Murphy, 893 F. Supp. 614 (W.D. Va. 1995), vacated on other grounds, 934
F. Supp. 736 (W.D. Va. 1996) (finding improper venue); Hampshire,892 F. Supp. at 132829. United States v. Sage, 906 F. Supp. 84 (D. Conn. 1995), affd, 92 F.3d 101 (2d Cir.
1996), cert. denied, 117 S.Ct. 784 (1997).
38. See Adam Hirsh, University of Idaho College of Law Federalism Symposium: HI.
United States v. Lopez: A Commerce Clause Challenge, 32 IDAHO L. REV. 505, 516
(1996)(stating that "It]he Fifth Circuit... may again be the first court of appeals to rule on
the constitutionality of a major Commerce Clause challenge").
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ing. The Second and Tenth Circuits have ruled in favor of the Act's con-
stitutionality 39 and the Ninth Circuit has joined them-reversing the
Arizona decision on which Bailey relied so heavily. 40 Moreover, in the
Third Circuit, the only remaining circuit in which a district court has declared the CSRA unconstitutional, another district court has declined to
follow the first court's lead.4 1 Further, district court decisions in at least
42
two more circuits have affirmed the constitutionality of the CSRA.
Thus, while the Bailey ruling may have represented majority judicial
opinion for at least a few months, it is now possible to say with some
confidence that "most courts agree the legislation is constitutional.
'43
Fi-
nally, while scholarly commentary is somewhat divided on the wisdom of
the CRSA, 44 the published work to date seems unanimous in favoring its
45
constitutionality under Lopez standards.
39. See United States v. Hampshire, 95 F.3d 999 (10th Cir. 1996); cert. denied, 117 S.
Ct. 753 (1997); United States v. Sage, 92 F.3d 101 (2d Cir. 1996), cert. denied, 117 S.Ct. 784,
(1997).
40. United States v. Mussari, 95 F.3d 787 (9th Cir. 1996).
41. See Ganaposki, 930 F. Supp. at 1078 (expressly noting that its "conclusion is in
conflict with the only other opinion to date in this circuit"). The Ganaposki court based its
conclusion in large part on post-Lopez Third Circuit authority suggesting that Congress'
Commerce Clause powers still would be viewed broadly. Id. at 1079-80 (discussing United
States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (construing a federal "carjacking" statute), cert.
denied, 116 S.Ct. 681 (1995)).
42. These are the First and Eleventh Circuits. See, e.g., United States v. Lewis, 936 F.
Supp. 1093, 1097 (D.R.I. 1996)(stating, inter alia, that "[t]he CSRA can be upheld as constitutional because the regulation of child support payments is, in itself, the regulation of
the channels of interstate commerce"); United States v. Kegel, 916 F. Supp. 1233, 1238
(M.D. Fla. 1996)(stating that "Congress' authority under the Commerce Clause may extend to non-commercial activity by a private actor if it is of the sort capable of repetition to
a degree which substantially affects interstate commerce")
43. Kerrie E. Maloney, Note, Gender-Motivated Violence and the Commerce Clause:
The Civil Rights Provision of the Violence Against Women Act After Lopez, 96 COLUM. L.
REV. 1876, 1908 n.144 (1996).
44. See, e.g., Eric Grossman, Comment, Where Do We Go From Here? The Aftermath
and Application of United States v. Lopez, 33 Hous. L. REV. 795 (1996):
One wonders how much consultation with the states actually took place
[before passage of the CSRA] because forty-eight states have already passed
the Uniform Reciprocal Enforcement of Support Act ...Perhaps the states
merely needed access to federal funds in order to vigorously pursue these
individuals, as opposed to the federal criminalization of failure to pay child
support.
Id. at 855; see also Wistner, supra note 31 at 937 (characterizing the CSRA as "an unwise
exercise of federal criminal lawmaking power" and "a prime example of what is wrong
with the recent federalization of criminal law").
45. See, e.g., Deborah Jones Merritt, Reflections on United States v. Lopez: Commerce!, 94 MICH. L. REV. 674, 724 (1995)(stating that "[tihe economic nature of a parent's
failure to pay child support" together with other factors "sustain[s] the constitutionality of
the Child Support Recovery Act after Lopez"); Burdette, supra note 35 at 1475 (stating
that "the criminal provisions of the CSRA should be found to be constitutional, both as a
matter of law and as a matter of social policy"); Ronald S. Kornreich, Note, The Constitutionality of Punishing Deadbeat Parents: The Child Support Recovery Act of 1992 After
United States v. Lopez, 64 FORDHAM L. REV. 1089, 1120 (1995)(concluding that "the
CSRA is a valid exercise of Congress's commerce power"); Watkins, supra note 28 at 848
(stating that the act "is not only a legitimate exercise of Congress's power under the Commerce Clause, but also under the Spending Clause"); Wistner, supra note 31 at 937 (stating
that "the CSRA is constitutional").
1997]
PARENT AND CHILD
1243
One may well question, as Judge Biery has questioned, the wisdom of
adding a level of federal sanctions to a relatively well-developed system
of interstate cooperation. 46 Nonetheless, at some level, that decision
must be left to the United States Congress. Congress found that child
support was a national problem, and that states were hampered in collecting child support obligations from out-of-state obligor parents.4 7 In the
aggregate, unpaid child support amounts to more than five billion dollars
48
per year.
Because the CRSA requires an interstate nexus,4 9 and because of the
specificity of the Congressional findings, 50 it is difficult to imagine a Fifth
Circuit ruling that will sustain Bailey. But, then again, the Fifth Circuit
surprised a lot of people in Lopez. Until that day, if it ever comes, indictments and rulings against Texas deadbeat dads continue to issue from the
many jurisdictions
that have sustained the constitutionality of the
51
CSRA.
II.
STATUS
One interesting paternity decision issued from the Texas Supreme
Court during the Survey period, and one issued shortly after the period
ended. Interest of B.LV. 52 is the second, and one hopes the last, Texas
Supreme Court appearance for a high-profile South Texas paternity suit
featuring a prominent judge, Raul Longoria, as defendant. 53 The case
46. Texas, like all other states, the District of Columbia and Puerto Rico, has adopted
the Uniform Interstate Family Support Act. Bailey, 902 F. Supp. at 730; see TEx. FAM.
CODE ANN. §§ 159.001-.902 (Vernon 1996).
47. H.R. REP. No. 102-771, 102d Cong., 2d Sess. (1992).
48. Hampshire, 892 F. Supp. at 1330.
49. See, e.g., Murphy, 893 F. Supp. at 616 (analogizing to federal statute punishing
felons who flee a state to avoid prosecution "taking advantage of our federal system of
government through flight to another state").
50. One commentator has noted that "[plerhaps the most important factor" distinguishing the CSRA from the legislation invalidated in Lopez was that the CSRA "was
passed in response to evidence showing that existing state mechanisms had proven to be
inadequate precisely because of the interstate nature of the conduct being regulated."
Stewart, supra note 37, at 523.
51. See, e.g., Philip P. Pan, Ex-Md. Dad a Deadbeat, Court Rules, WASH. POST, Nov.
14, 1996, at D5 (reporting conviction against Corpus Christi man, since remarried to a King
Ranch heir, and redivorced, owing about $35,000 under Maryland court order); Joy Powell,
Child-Support Crackdown Is Welcomed Child Support, OMAHA WORLD-HERALD, Oct. 18,
1996, at 19SF (reporting prosecution against Wimberly man owing about $9,000 under
Oklahoma court order); Peter Shinkle, Prosecutors Target "Deadbeat Parents", BATON
ROUGE ADVOC., Jan. 23, 1997, at 1A (reporting prosecution against Abilene man owing
about $21,000 under Louisiana court order); Bruce Vielmetti, Federal Action Taken
Against Deadbeat Parents, ST. PETERSBURG TIMES, Mar. 10, 1996, at lB (reporting prosecution against Texas truck driver owing nearly $40,000 under Florida court order).
52. 923 S.W.2d 573 (Tex. 1996).
53. The first decision was B.I.V., 870 S.W.2d 12 (Tex. 1994). That case was discussed in
an earlier Survey. See James W. Paulsen, Family Law: Parentand Child, Annual Survey of
Texas Law, 48 SMU L. REV. 1275, 1277-79 (1995) [hereinafter Paulsen, 1995 Annual Survey]. The court of appeals decision has also been discussed. See James W. Paulsen, Family
Law: Parentand Child, Annual Survey of Texas Law, 49 SMU L. REV. 1063, 1068 (1996)
[hereinafter Paulsen, 1996 Annual Survey].
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[Vol. 50
involves a simple standing issue: whether the mother may intervene in a
paternity and support suit brought by the Attorney General's office. The
Supreme Court of Texas concluded, in a per curiam opinion reversing the
judgments of both lower courts, that the mother indeed does have sufficient "personal stake in the controversy" 54 to participate. The court
noted that the mother's possessory rights in the child were affected by
court-ordered visitation, and that the mother's statutory right to receive
and disburse support payments 55 was affected by the court's order that
support payments be paid into a trust for the child.
B.LV. is not particularly noteworthy in its own right, but it does provide another piece for the puzzle created by recent Texas Supreme Court
jurisprudence on parties and judgments in the paternity area. In Lavan,56
the court intimated that a suit by the Attorney General to establish paternity is not affected by declarations regarding paternity in a prior divorce
decree. 57 In J. WT. ,58 the court held that constitutional considerations
require some opportunity for an alleged biological father to prove paternity, a holding since written into the statutes.5 9 In Dreyer v. Greene,60
however, the Texas Supreme Court intimated that a paternity suit
brought by the children is barred by a prior divorce decree declaring the
husband to be "father" of the children.
In Dreyer, a majority of the court relied on waiver to sidestep the issue
of whether the interests of the children were sufficiently identical with or
protected by the mother to warrant using the divorce action to preclude a
later suit by the children. 61 Therefore, the Texas Supreme Court in
Dreyer did not engage in any close analysis of potentially conflicting interests between mother and child. Though B.I.V. and Dreyer might be
distinguished on the facts, one would hope that the Texas Supreme Court
will eventually see a future Dreyer scenario as posing a question very
much like that addressed in B.I.V. If a parent has interests that could
potentially conflict with the aims of the Attorney General's office, which
54. B.I.V., 923 S.W.2d at 574 (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)).
55. The Court quoted the Family Code's provision that a parent has "the right to receive and give receipt for payments for the support of the child and to hold or disburse
funds for the benefit of the child." Id. at 575 (quoting TEX. FAM. CODE ANN.
§ 151.003(a)(8) (Vernon 1996)).
56. Attorney General of Texas v. Lavan, 833 S.W.2d 952 (Tex. 1992). The case has
been discussed in an earlier Survey. See James W. Paulsen, Family Law: Parentand Child,
Annual Survey of Texas Law, 46 SMU L. REV. 1515, 1515-17 (1993) [hereinafter Paulsen,
1993 Annual Survey].
57. Id. at 955.
58. 872 S.W.2d 189 (Tex. 1994). The case was treated extensively in an earlier Survey.
See James W. Paulsen, Family Law: Parent and Child, Annual Survey of Texas Law, SMU
L. REV., 1197, 1197-1205 (1994) [hereinafter Paulsen, 1994 Annual Survey].
59. See TEX. FAM. CODE ANN. § 160.101(a)(3) (Vernon 1996) (providing statutory authority for an action by a supposed biological father) and TEX. FAM. CODE ANN.
§ 160.110(f) (Vernon 1996) (establishing a two-year limitation period for such actions).
60. 871 S.W.2d 697 (Tex. 1993). The case was discussed extensively in an earlier Survey. See Paulsen, 1994 Annual Survey, supra note 58, at 1205-07.
61. The Court noted that the issue had not been raised at trial and "express[ed] no
opinion" on the question of whether the children could raise the issue by later bill of review. Dreyer, 871 S.W.2d at 698 n.2.
1997]
PARENT AND CHILD
1245
presumably is operating in the best interest of the child, 62 then a parent
likewise might have interests that could conflict with those of a child who
does not have independent representation in a divorce.
Interest of A.L.J.63 demonstrates some of the harsh results of extending
Dreyer. In A.L.J., the mother sued to establish paternity of an alleged
biological father. The man defended by pointing to the woman's prior
divorce decree. The trial court granted summary judgment for the man
and the court of appeals affirmed. The Tyler Court of Appeals relied on
the fact that in her prior divorce case, the mother swore in her pleadings
that her husband was the child's "father," and the original trial court or64
dered termination of the "parent-child relationship" with that "parent.
The mother pointed out that, so far as res judicata effect of the first
decision was concerned, "parent" can mean something other than "biological father."'65 Moreover, argued the mother, under Lavan, the prior
decree should not be binding. The Tyler Court of Appeals did not agree.
In Lavan, the court pointed out, the child was not mentioned in the divorce decree.66 Instead, the Tyler court chose to rely on the statement in
Dreyer that "it is implausible that the court would have chosen this single
word (parents) to refer, without qualification or explanation, to both the
and the children and some
biological relationship between [the wife] '67
other relationship involving [the husband].
Of course, one can argue with the Texas Supreme Court's assumption
in Dreyer. The most that can be said about the husband of a child born
68
during marriage is that he is the presumed biological father of that child.
This presumption usually will not be contested in a divorce, sometimes
for the simple reason that the presumed biological father is not in the
possession of facts that otherwise might lead to reasonable doubt on the
point. In Dreyer, for example, the mother may have had a selfish reason
not to disclose the existence of another possible biological father: She
apparently thought her soon-to-be ex-husband was a better source of
62. Suit in B.LV. was instituted under Chapter 76 of the Human Resources Code,
which provides for parent locator, child support, or paternity determination services for the
benefit of a child. B.LV., 923 S.W.2d at 574 (emphasis added); see TEX. HUM. RES. CODE
ANN. § 76.004(a) (Vernon 1990), repealed and reenacted as TEX. FAM. CODE ANN.
§ 231.101(a) (Vernon 1996). For this reason, the suit is styled "In the interest of" B.I.V.
63. 929 S.W.2d 467 (Tex. App.-Tyler 1996, no writ).
64. Id. at 470.
65. "Parent" is a term used by the Family Code to mean something different from
simple biological fatherhood. As but one example, the Family Code provides that a parent-child relationship is created by adoption. See TEX. FAM. CODE ANN. § 151.001(a)(3)
(Vernon 1996).
66. A.L.J., 929 S.W.2d at 471.
67. Id. at 470 (quoting Dreyer, 871 S.W.2d at 698).
68. See TEX. FAM. CODE ANN. § 151.002(a)(1) (Vernon 1996) (stating that "[a] man is
presumed to be the biological father of a child if he and the child's biological mother are or
have been married to each other and the child is born during the marriage or not more
than 300 days after...").
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child support. 69 The mother in A.L.J. also argued that the divorce judgment was rendered by default. The Tyler Court of Appeals rejected this
argument as well, pointing to recitals in the judgment that the court "had
heard evidence and found that these allegations were true."'70 Moreover,
71
as the court pointed out, Dreyer also involved a default judgment.
A.L.J. is remarkable not so much for its result, which is a reasonably
logical extension of Dreyer's harsh holding, but for the vigorous dissent
by Justice Holcomb. He pointed out, as a principal point of dissimilarity
between the two cases, that constitutional arguments were waived in
Dreyer.72 By contrast, in A.L.J., a Texas due process claim 73 was "adequately and properly preserved. ' 74 Justice Holcomb noted that the Texas
Supreme Court permitted a biological father to raise a paternity challenge and concluded that "[i]t seems to me that the children themselves
would necessarily have the same right, under due course of law, to assert
their claims of paternity against their actual biological father, '75
even if their
mother, in a default divorce decree, has claimed otherwise.
A somewhat similar paternity issue, but with a substantial interstate
twist, recently has commanded the attention of the Texas Supreme Court.
In Purcell v. Bellinger,76 a divorced mother brought a paternity claim,
individually and on behalf of her son. An earlier New York suit against
the claimed biological father had been dismissed with prejudice after a
finding that the mother's proof was not "clear, convincing and entirely
satisfactory. '77 The child was not represented by an attorney ad litem in
the New York action. In addition, most of the mother's evidence was
excluded, including a blood test that would have excluded 99.4 percent of
78
the male population.
The San Antonio Court of Appeals ruled that the suit was not barred.
On the question of choice of law, the court simply stated without explanation or supporting authority that it was "bound by Texas law, not that of
69. See Dreyer, 871 S.W.2d at 700 (Gammage, J., dissenting)(noting that "[t]he twins'
mother apparently was not protecting their interests when she sought child support for
them from her ex-husband").
70. A.L.J., 929 S.W.2d at 471.
71. Id. at 470.
72. Justice Holcomb also pointed out that the controlling facts were markedly different from the facts in Dreyer, in that A.L.J.'s mother was six months pregnant when she
married the presumed father, and the claimed biological father did not deny sexual relations during the relevant period. A.L.J., 929 S.W.2d at 474 (Holcomb, J., dissenting).
73. See TEX. CONST. art. I, § 19 (stating that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land"). Apparently no claim was made under
the United States Constitution or the Texas "open courts" clause. See U.S. CONST. amend.
XIV; TEX. CONST. art. I, § 13.
74. 929 S.W.2d at 473(Holcomb, J., dissenting).
75. Id. at 474.
76. 40 Tex. Sup. Ct. J.295 (Jan. 31, 1997).
77. Id.
78. Bellinger v. Purcell, 914 S.W.2d 630, 632 (Tex. App.-San Antonio 1995), rev'd, 40
Tex. Sup. Ct. J. 295 (Jan. 31, 1997).
1997]
PARENT AND CHILD
1247
New York."' 79 The court's explanation of why it did not feel bound by
Dreyer was fleshed out in somewhat greater detail. The court relied on
earlier cases to the effect that a child is not barred by the effect of a prior
paternity action, unless "the record clearly demonstrates that the [previous] suit was based solely on the child's rights ...and that the relief was
solely for the use and benefit of the child."' 80 The San Antonio court
noted the intermediate appellate decision in B.I.V. for its analogous reasoning and concluded: "We do not find the circumstances and the hold[this child] has no presumed
ing in Dreyer applicable to this case because
'
father and has never been legitimated."' 8
At first blush, the San Antonio court's distinctions seem rather thin.
But for B.IV., all the court's authority predated Dreyer. Moreover,
whether the mother was given a fair shake or not, the precise issue was
contested and adjudicated in favor of the claimed biological father. Thus,
the situation might be seen as somewhat fairer than Dreyer, so far as the
rights of the child are concerned.
While the fact that the Texas Supreme Court reversed the San Antonio
Court of Appeals in Purcell is not surprising, the opinion contains some
very interesting language. The Texas Supreme Court applied settled law
to rule that New York law, not Texas law, governed. 82 The court noted
that, at that time, New York did not permit a minor to bring a paternity
proceeding, that there was no proof the child was inadequately represented or that there was any conflict of interest, and that any evidentiary
problems should have been addressed in a direct appeal of the first
83
proceeding.
The court continued, however, with some observations that might give
hope to those who look for a retreat from Dreyer if a constitutional claim
is presented squarely. The Texas Supreme Court stated that, even if New
York's law had been challenged on constitutional grounds, "[a] state has
the right to impose reasonable parameters on suits to establish paternity."'84 The court explained that under Texas law:
[T]he Family Code provides a rebuttable presumption that "in a
trial on the merits before a judge or jury.., the interests of the child
will be adequately represented by the party bringing suit to establish
parentage of the child.".. . Unless the child rebuts this presumption, a
a prior paternity action by the mother bars any subsejudgment in
85
quent suit.
79. Id.
80. Id. (quoting Stroud v. Stroud, 733 S.W.2d 619, 621 (Tex. App.-Dallas 1987, no
writ)); see also Attorney General v. Ridge, 773 S.W.2d 645 (Tex. App.-San Antonio 1989,
writ denied).
81. Id.
82. See, e.g., Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990)(applying federal res judicata law in Texas court to determine preclusive effect of earlier federal judgment).
83. Purcell, 40 Tex. Sup. Ct. J. at 296-97.
84. Id. at 297.
85. Id. (emphasis added) (quoting TEX. FAM. CODE ANN. § 160.003 (Vernon 1996)).
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The court added: "Our holding does not prevent a child from establishing paternity; it only prevents relitigation of paternity when the child's
interests were adequately pursued in a previous paternity action that re86
sulted in a final judgment."
The possible significance of the Texas Supreme Court's language may
be seen by comparison to the Tyler Court of Appeals' treatment of the
same statutory provision in A.L.J. By its language, the "rebuttable presumption" language of the Family Code seems to apply only "in a trial on
the merits before a judge or jury," 87 that is, in the first trial in which
paternity is adjudged. The Tyler court proceeded from this presumption
to use the language of the Family Code to argue against a later suit by the
child. If, in the first trial, the court found that the interests of the child
were not adequately represented by the parent bringing the suit, thenreasoned the Tyler court-the statute would have required the appointment of an attorney ad litem. Since no ad litem was appointed and the
first judgment was not attacked directly, a later court must presume that
the first court found the child's interests were adequately represented. 88
Of course, in the typical case, such assumptions and presumptions are
sheerest nonsense. 89 If a court has no special reason to assume a conflict
of interest, no attorney ad litem will be appointed. If no attorney ad litem is appointed, no one is likely to attack the judgment on the ground of
inadequate representation. And if these assumptions form a total bar to
a later suit by a child, then it would seem that constitutional concerns are
implicated. The Tyler Court of Appeals' reasoning in A.L.J. therefore
seems to form a "Catch 22": If an attorney ad litem is appointed, a later
suit is barred because the child was represented by the ad litem; if none is
appointed, a later suit is barred by the implied finding that the child was
adequately represented by the parent. Either way, the child cannot sue.
In contrast, the language of the Texas Supreme Court's opinion in Purcell may signal an attempt by the court to use the statute's language to
create an opportunity for the initiation of paternity suits by children who
were in fact represented poorly by a parent in a prior action. The fact
that the San Antonio Court of Appeals in Purcell went to some pains to
distinguish Dreyer,90 while the Texas Supreme Court did not mention
Dreyer at all, surely is suggestive. One therefore might hope that if a fact
situation similar to Dreyer should arise in a future case, and constitutional
86. Id.
87. TEx. FAM. CODE ANN. § 160.003 (Vernon 1996).
88. A.L.J., 929 S.W.2d at 471.
89. Moreover, even if the judgment were to recite boilerplate language to the contrary, as the TIyler Court of Appeals opinion seems to intimate, the likelihood that the
language reflects any "real" determination by the court would seem small. See id. (stating
that the prior divorce court "found" that the mother would adequately represent the
child's interests, that the interests were not adverse, and that there was no need for the
appointment of an attorney ad litem, but not specifying whether this conclusion was based
on recitals in the judgment, or conclusions based on the presumption that the court would
have fulfilled all statutory duties).
90. See supra note 78 and accompanying text.
1997]
PARENT AND CHILD
1249
arguments are preserved and presented properly, the Purcell dicta will
provide a blueprint for a different result.
One footnote on the general subject of standing and prior paternity
suits should be added. In B.M.L. ex rel. Jones v. Cooper,9 1 the Austin
Court of Appeals held that a suit by a child was not barred by a prior
adjudication of nonpaternity in a support action brought by the Attorney
General's office. In essence, the child claimed the first judgment had
been obtained by fraud, and that the blood used for the initial testing was
not the defendant's, but that of a "ringer. '92 The court noted and attempted to distinguish Dreyer93 but preferred to follow the court of appeals ruling in Purcell. No matter how one views the scope of Dreyer, or
what one chooses to read into the Texas Supreme Court reversal of the
intermediate decision in Purcell,however, the presence of a serious fraud
issue affecting the central evidence presented in B.M.L. surely argued for
94
limited application of the collateral estoppel doctrine.
In the Interest of A.S.L., 95 a decision from the Amarillo Court of Appeals, once again raised an issue that periodically has troubled courts:
whether a paternity action can be brought after the death of the alleged
father. The Amarillo court noted a division of opinion between the two
courts of appeals that had previously addressed the issue;96 the Amarillo
court chose to permit the child a right of action. The Amarillo court rea-
soned (correctly, in the writers' opinion) that the Texas Supreme Court
has demonstrated some sensitivity to the rights of children born out of
wedlock, 97 that the relevant statutes do not positively prohibit a suit after
91. 919 S.W.2d 855 (Tex. App.-Austin 1996, no writ).
92. A Turkish doctor stated that, on the same day the serviceman defendant supposedly had appeared to have blood drawn for testing, the doctor had seen the man whose
blood was tested walking around the U.S. Air Force base wearing a different name badge.
The issue was complicated by the fact that, while a letter to that effect from the doctor was
submitted, a signed affidavit had not been procured. Id. at 857-58.
93. The Austin court believed Dreyer to be consistent with the proposition that "children may bring their own actions after a failure to find paternity in a divorce decree, but
not after an adjudication of paternity." Id. at 859. Curiously, the Austin court in B.M.L.
omitted any mention of Lavan, though the facts of that case arguably would be closest in
point. Compare Lavan, 833 S.W.2d 952 (ruling that a suit by the Attorney General's office
is not barred by declarations in a prior divorce decree, to which the Attorney General's
office was not a party) with B.M.L., 919 S.W.2d 855 (ruling that a suit by a child is not
barred by declarations in a suit brought by the Attorney General's office, to which the
child was not a party).
94. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994) (citing
Allen v. McCurry, 449 U.S. 90, 94-95 (1980) for the proposition that collateral estoppel
requires that the issue in question have been "fully and fairly litigated" in the first case);
see also RESTATEMENT (SECOND) OF JUDGMENTS § 70(1)(b) (1982) (stating that "a judgment in a contested action may be avoided if the judgment... [w]as based on a claim that
the party obtaining the judgment knew to be fraudulent") and id. comment a (explaining
that "[t]o immunize such a judgment from attack is to compound the injustice of its result
on the merits with the injustice of the means by which it was reached").
95. 923 S.W.2d 814 (Tex. App.-Amarillo 1996, no writ).
96. Compare In the Interest of George, 794 S.W.2d 875 (Tex. App.-Tyler 1990, no
writ) (refusing to permit an action) with Manuel v. Spector, 712 S.W.2d 219 (Tex. App.San Antonio 1986, no writ)(permitting an action to proceed).
97. See, e.g., Dickson v. Simpson, 807 S.W.2d 726 (Tex. 1991) (stating, in the probate
context, that a rule requiring a child to bring suit to establish paternity before its first
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the alleged father's death, 98 and that the common law rule that paternity
actions did not survive the death of the alleged father had been overruled
by implication through state statute. 99
The A.S.L. court also addressed an evidentiary concern in post-death
paternity actions. Like those in most states, Texas paternity statutes now
depend heavily on blood tests. 10 0 In determining that the child was not
entitled to bring a post-death paternity action, an earlier court reasoned
that these statutes are "indications" that the Family Code contemplates
that the suit take place during the alleged father's life.' 0 The Amarillo
court in A.S.L., however, noted that if the alleged father "fails to ap-
pear" 10 2 (something that seems highly likely in the average
post-mortem
03
paternity case), then parentage testing may be waived.'
III.
CONSERVATORSHIP
Two recent decisions address the question of third party liability for
conservatorship decisions. In Mattix-Hill v. Reck, 10 4 the Texas Supreme
Court let stand a decision that, under the particular facts, a DHS
caseworker was not liable in tort to a child or mother for urging that the
child should be permanently removed from the home. In Delcourt v.
Silverman, 0 5 the Fourteenth Court of Appeals likewise ruled in favor of
a psychiatrist and guardian ad litem, though on immunity grounds.
06
Fifteen-year-old Amy Reck accused her stepfather of sexual abuse.
Amy's mother believed that no molestation had occurred and refused to
ask the stepfather to leave. Amy therefore was removed from her home
birthday violates the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution).
98. The Texas Probate Code provides, among other options, that a biological child to
be entitled to inherit if the child "is adjudicated to be the child of the father by court order
or as provided by Chapter 13, Family Code." TEX. PROB. CODE ANN. § 42(b)(1) (Vernon
Supp. 1997). That part of the Family Code, now Chapter 160, provides in part that a child
may bring an action to determine paternity up to two years after becoming an adult. TEX.
FAM. CODE ANN.
§ 160.002(b) (West 1996).
99. See A.S.L., 923 S.W.2d at 816-17.
100. See, e.g.,
TEX. FAM. CODE ANN.
§ 160.102 (Vernon 1996) (stating that the court
"shall" order all parties to submit to "the taking of blood, body fluid, or tissue samples");
§ 160.106(c) (putting the burden of proof on one whose paternity is not excluded by a test
that would exclude more than 99 percent of the male population).
101. George, 794 S.W.2d at 878.
102. TEX. FAM. CODE ANN. § 160.102(b) (Vernon 1996).
103. The statute actually states that parentage testing can be waived only in cases in
which the respondent "fails to appear and wholly defaults." TEX. FAM. CODE ANN.
§ 160.002(b) (Vernon 1996). Depending on the procedural posture of the case, it would be
difficult to say that the alleged father "wholly defaults" in failing to appear, or even "fails
to appear," if a personal representative defends the suit. The Amarillo court in A.S.L. did
not try to push the statutory language too far, but observed only that the statute "indicat[es] that the legislature did not consider such samples essential to deciding the paternity
issue." 923 S.W.2d at 814.
104. 923 S.W.2d 596 (Tex. 1996)(per curiam).
105. 919 S.W.2d 777 (Tex. App.-Houston [14th Dist.] 1996, writ denied).
106. The summary of the facts that follows is taken largely from the Texas Supreme
Court's per curiam opinion, which issomewhat better organized than the opinion of the
court of appeals. See Reck, 923 S.W.2d at 596-97.
19971
PARENT AND CHILD
1251
and placed in foster care. The stepfather eventually confessed to the
abuse, whereupon Amy's mother commenced divorce proceedings.
Meanwhile, Amy ran away from her foster home. She returned three
days later, claiming she was raped by one or more unknown men. When
Amy disappeared, caseworker Mattix-Hill contacted Mrs. Reck to notify
her of Amy's disappearance. In the same conversation, Mattix-Hill also
urged Mrs. Reck to permanently place Amy in foster care.
Instead, Amy's mother sued the DHS, Mattix-Hill and four other DPS
employees under the Texas Tort Claims Act' 0 7 for intentional infliction of
emotional distress and similar torts. 10 8 The jury found in favor of two coworkers but awarded $3.5 million against the remaining defendants on
intentional infliction of emotional distress grounds; the trial court granted
an across-the-board judgment notwithstanding the verdict. 10 9 Mrs. Reck
appealed the judgment against Mattix-Hill and two other employees.
The Beaumont Court of Appeals went through an unusually detailed
description of the acts of which Amy Reck and her mother complained, 110 matching them against the elements of the tort of intentional
infliction of emotional distress set out in Twyman. 11 The trial court's
judgment in favor of one defendant, who supposedly ratified the wrongful
acts of the others, was dismissed for lack of record support, together with
a lack of legal authority for the proposition that liability for intentional
infliction of emotional distress can be imposed simply for approving another's acts. 112 The judgment in favor of a second defendant, who supposedly yelled at Mrs. Reck over the phone and "threw" pamphlets at her
while interviewing her about her husband's molestation of Amy, was affirmed on the ground that the actions, even if true, did not constitute
3
"intentional outrageous or extreme conduct.""1
On most claims, the Beaumont Court of Appeals also found in favor of
caseworker Mattix-Hill, principally because there was no properly briefed
record support. Nonetheless, the court of appeals found some evidence
to support the claim that Mattix-Hill had acted outrageously in trying to
get Mrs. Reck to consent to a permanent placement plan for Amy during
the same conversation in which she told Mrs. Reck that Amy had disappeared. The Beaumont court noted that "[o]ur Supreme Court has not
defined 'all reasonable 4bounds of decency"' and added that the question
"may be a fact issue."" The court conceded that Mattix-Hill's inquiries,
107. TEX. CIv. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp. 1996).
108. These included bad faith, malice, gross negligence and civil conspiracy. Reck v.
Londow, 926 S.W.2d 592, 592 (Tex. App.-Beaumont 1995), rev'd in part sub nom. MattixHill v. Reck, 923 S.W.2d 596 (Tex. 1996).
109. Reck, 923 S.W.2d at 597.
110. See Reck, 926 S.W.2d at 593-97.
111. Twyman v. 'wvyman, 855 S.W.2d 619 (Tex. 1993).
112. Reck, 926 S.W.2d at 594. The court of appeals also found that some other acts
either were never communicated directly to the plaintiffs or that they did not, as a matter
of law, rise above the level of mere negligence. Id.
113. Id.
114. Id.at 596.
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under the circumstances, might be viewed as an attempt to take unfair
advantage of Mrs. Reck. As a consequence, the Beaumont panel concluded that "[w]e cannot say, as a matter of law, this does not constitute
115
outrageous or extreme conduct."'
The Texas Supreme Court disagreed. Both the telephone call about
Amy's disappearance and the questions about the placement plan were
part of Mattix-Hill's job. The Court reminded the parties that "DHS
caseworkers are often involved in emotionally charged situations, and ...
they may be confronted with conflicting interests and duties."' " 6 After
stating that it was appropriate for Mattix-Hill to contact Mrs. Reck about
Amy's disappearance, the Texas Supreme Court added: "Nor was a request that Reck sign the placement papers or the timing of that request
'so outrageous in character, and so extreme in degree, as to go beyond all
'' 7
possible bounds of decency."'
While the finer nuances of Reck are perhaps of more interest to tort
lawyers than family law practitioners, three points are of more general
interest. First, the Beaumont court's observation that the Texas Supreme
Court has not given much guidance on what constitutes "extreme and
outrageous" conduct remains valid after the supreme court's uninformative ruling in Reck." 8 Perhaps the outrageous conduct that gives rise to a
tort claim will prove incapable of any definition more precise than Justice
Potter Stewart's famed "I know it when I see it" definition of obscenity." 9 Nonetheless, while the writers do agree with the result, it is unsettling to have the outcome of a case depend on something no more
substantial than the unamplified opinion of nine judges based on "eyeballing" the evidence.
A second point of interest about Reck is that both the litigants and the
courts appeared to ignore a critical point of legal difference between the
principles announced in Twyman and the actual charge that was submitted in Reck. In Twyman, the Texas Supreme Court adopted the tort of
intentional infliction of emotional distress "as set out in Section 46(1) of
the Restatement (Second) of Torts.' 2 0 As the Texas Supreme Court correctly pointed out in Reck, the "extreme and outrageous" conduct
targeted by the Restatement must "go beyond all possible bounds of decency.' 12 ' Nonetheless, while the Beaumont court characterized the
115. Id.
116. Reck, 923 S.W.2d at 598.
117. Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)).
118. The Texas Supreme Court stated that the caseworker was simply doing her job,
that DHS workers "are often involved in emotionally charged situations" and that they
"strive to protect the child, to treat the parents fairly, and to further the goals of society."
Reck, 923 S.W.2d at 598. All this may well be true. It says nothing, however, about the
question of whether it is appropriate to discuss a permanent placement plan in the same
conversation in which a mother is informed that her daughter is missing from the foster
home. To that question, the court simply stated that caseworker Mattix-Hill's conduct was
"appropriate in the circumstances." Id.
119. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)(Stewart, J., concurring).
120. 855 S.W.2d at 621-22.
121. See supra note 117 (emphasis added).
1997]
PARENT AND CHILD
1253
Reck jury charge as "correctly submitted under Twyman," the jury instruction of "extreme and outrageous" conduct actually stated only that
the conduct must exceed "all reasonable grounds of decency," rather than
122 This
following Twyman's "all possible grounds of decency" language.
language discrepency might be crucial. One might well agree with the
Beaumont court that whether the caseworker's conduct exceeded all
"reasonable" bounds of decency might be one for the jury, yet also agree
with the supreme court that the evidence does not raise a fact issue as to
whether all "possible" bounds of decency have been exceeded. The fail-
ure of either the Beaumont Court of Appeals or the Texas Supreme
Court in Reck to address the substantial discrepancy between the language of the charge, and that of Twyman and the Restatement is unfortu-
nate, because other courts appear to be using the erroneous "all
reasonable bounds" language. 123
In Reck, the Texas Supreme Court stated that in view of the disposition
of the case, it was not necessary to reach the question of whether the
caseworker was protected by judicial immunity or statutory protection for
individual defendants under the Texas Tort Claims Act. 124 An immunity
question was addressed more directly by the Houston Court of Appeals
(Fourteenth District) in Delcourt v. Silverman. 125 The losing parent in a
custody dispute sued the court-appointed psychiatrist and attorney ad litern on several tort grounds. 126 The trial court granted summary judgment for the professionals; the court of appeals affirmed. Because the
trial court's grant of summary judgment did not specify the grounds, the
court of appeals had the option to affirm the decision for any reason warranted by the evidence. 127 The Houston court chose, in an elaborately
reasoned opinion, to affirm on the ground of absolute immunity.
122. Twyman, 855 S.W.2d at 621 (quoting the Restatement).
123. See Villasenor v. Villasenor, 911 S.W.2d 411, 421 (Tex. App.-San Antonio 1995,
no writ) (quoting Massey v. Massey, 807 S.W.2d 391, 400 (Tex. App.-Houston f1st Dist.]
1991, writ denied) and concluding that. defendant's actions exceeded "all reasonable
bounds of decency"); Massey, 807 S.W.2d at 400 (stating that "[o]utrageous conduct is that
conduct which exceeds all reasonable bounds of decency").
124. Reck, 923 S.W.2d at 598. The Texas Tort Claims Act provides that a judgment
against a governmental entity bars an action against an individual employee based on the
same subject matter. See TEX. CIv. PRAC. & REM. CODE ANN. § 101.106 (Vernon 1986)
(stating that "[a] judgment in an action or a settlement of a claim under [the Texas Tort
Claims Act] bars any action involving the same subject matter by the claimant against the
employee of the governmental unit whose act or omission gave rise to the claim"). The
Act, however, does not apply when the claim "aris[es] out of assault, battery, false imprisonment, or any other intentional tort." TEX. CIv. PRAC. & REM. CODE ANN. § 101.057
(Vernon 1986). The court of appeals held that the latter section permitted the action
against the individual caseworkers to proceed, despite the fact that the Recks did not appeal the J.N.O.V. in favor of the DHS. Reck, 926 S.W.2d at 592.
125. 919 S.W.2d 777 (Tex. App.-Houston [14th Dist.] 1996, writ denied).
126. There was some dispute as to exactly which pleading was the "live" one, and how
many torts were alleged. The court of appeals eventually boiled the list down to four:
negligence, fraud, civil conspiracy and intentional inflection of severe emotional distress.
Id. at 780-81.
127. See id. at 780 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).
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The Delcourt opinion begins with an extended primer on the doctrine
of judicial immunity. Judges generally are immune from liability for actions undertaken while in the performance of their office, "no matter how
erroneous the act or how evil the motive. ' 128 When a judge delegates or
appoints another to perform services for the court, immunity may follow
129
the delegation, under the doctrine of "derived judicial immunity.
Courts commonly follow a "functional" approach to determination of im-
munity, asking whether the party claiming immunity is "acting as an integral part of the judicial system or an 'arm of the court."" 13° The relevant
question is then whether the psychiatrist and ad litem were acting on behalf of the judge.
As to the psychiatrist, appointed under Rule 167a to evaluate the parents and child, 13 1 the court noted that "the psychiatrist or mental health
professional perform[s] a special task closely related to the judicial pro-
cess pursuant to a court directive."'1 32 If immunity were not offered, the
Houston court reasoned, "such professionals would be, at the very least,
reluctant to accept these appointments," which would "inhibit judges
33
from performing their duties.'
The ad litem appointment was a somewhat trickier matter. Under the
Family Code, 134 a court is empowered, and sometimes required, to ap-
point an attorney ad litem for a child. Nonetheless, until the Delcourt
decision, there apparently had never been a decision on the liability of an
ad litem appointed under the Family Code. 135 Recent commentators, including the associate judge who appointed the psychiatrist and attorney
ad litem in the Delcourt matter, have expressed concern over the lack of
clear liability standards. 136 The court of appeals therefore undertook to
provide this certainty by extending judicial immunity to attorneys ad
litem.
128. Id. at 781 (citing, inter alia, Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961)). The
court qualified this general statement with the sole requirement that the judicial action not
be taken "in the clear absence of all jurisdiction." Id.
129. Id. at 782 (citing Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992)).
130. Id. (citing and quoting Briscoe v. LaHue, 460 U.S. 325, 335 (1983)).
131. The rule states that in Title II family law cases, the court may appoint "one or
more psychologists to make any and all appropriate mental examinations of the children
who are the subject of the suit or any other parties." TEX. R. Civ. P. 167a(d)(1).
132. Delcourt, 919 S.W.2d at 782.
133. Id. at 783.
134. The provision relied upon at trial in Delcourt was revised and recodified during the
1995 rewrite of the Family Code. The Code now provides that an attorney ad litem must
be appointed in any suit in which termination of parental rights is requested, with certain
exceptions. TEX. FAM. CODE ANN. § 107.001(a) (Vernon 1996). The Code also provides
that an attorney ad litem may be appointed, at the discretion of the court or associate
judge, in any other matter. § 107.001(b). Appointment is required in cases in which "the
court deems representation necessary to protect the interests of the child who is the subject
matter of the suit." § 107.011(b).
135. Delcourt, 919 S.W.2d at 783.
136. See Jim Gulberteau & Linda Motheral, The Changing Role of Guardianand Attorney Ad Litems, 55 TEX. B.J. 955, 957 (1995)(stating that "it may be anticipated that there
will be the potential for increasing shortages of available and qualified attorneys over the
next few years who will be willing to risk the uncertainty and exposure ...").
1997]
PARENT AND CHILD
1255
The Delcourt panel took considerable trouble to distinguish its decision
from a recent Dallas opinion, Byrd v. Woodruff,1 3 7 in which judicial immunity was denied to an attorney ad litem. In Byrd, the ad litem was
appointed under Rule 173138 to represent the child's interests in determining the apportionment of settlement proceeds. Because the ad litem's
duties in such a case "place the ad litem in the capacity of the minor's
personal representative, displacing the next friend," the Byrd ad1 litem
39
was "acting as an advocate and not a representative of the court."'
Although the Delcourt court is not particularly clear on the issue, it
evidently felt an ad litem appointment under the Family Code should be
treated differently, not because the ad litem has a different responsibility
under the Family Code compared to a personal injury settlement, but because the judge has a different role. In both a personal injury settlement
and a custody case, the ad litem must represent the best interests of the
child. In a custody case, however, the judge is not a neutral arbiter between the competing parties. Rather, the court, like the ad litem, is under
a statutory mandate to act in "[tihe best interest of the child.' 140 For this
reason, most 14 1, but not all, 142 courts extend a form of judicial immunity
to guardians ad litem in child custody matters.
The decision in Delcourt, however, is not altogether immune from criticism. For one thing, the interests of the ad litem and the court in a child
custody are not always completely in harmony. While the best interest of
the child is the "primary consideration" for the court in a child custody
matter, 143 other considerations, such as the public policy favoring the appointment of parents as conservators, also must be considered. The attorney ad litem, appointed simply "to protect the interests of the child," has
no such constraints.
Another ground on which Delcourt can be criticized is the court's inadequate attention to assuring the child some redress for inadequate representation by an attorney ad litem. Absolute quasi-judicial immunity
would not only block suits by disgruntled non-custodial parents, it would
prohibit suits by children wronged by the negligent conduct of ad litems
137. 891 S.W.2d 689 (Tex. App.-Dallas 1994, writ denied).
138. The rule provides in relevant part that when a minor "is a party to a suit ... and is
represented by a next friend or a guardian who appears to the court to have an interest
adverse to such minor ... , the court shall appoint a guardian ad litem for such person."
TEx. R. Civ. P. 173.
139. Delcourt, 919 S.W.2d at 784.
140. See TEX. FAM. CODE ANN. § 153.004 (Vernon 1996) (stating that "[tihe best interest of the child shall always be the primary consideration of the court in determining the
issues of conservatorship and possession of and access to the child").
141. See generally Susan L. Thomas, Annotation, Liability of Guardian Ad Litem for
Infant Party to Civil Suit for Negligence in Connection With Suit, 14 A.L.R. 5th 929 (1996).
142. A notable exception is the recent decision in Fleming v. Asbill, 42 F.3d 886 (4th
Cir. 1994)(holding, under South Carolina law, that a guardian ad litem could be liable in a
negligence suit by a child claiming poor representation in suit in which grandparents obtained custody).
143. See supra note 140.
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supposedly acting on their behalf. 144 The Texas Legislature has recently
evidenced concern for the competence of attorneys ad litem, spelling out
the minimum duties of those attorneys 145 and requiring a training course
and continuing legal education. 146 Sampson and Tindall correctly state
that "it is a sad commentary on the practice of law when the legislature
'
must intervene to mandate elementary activities of an attorney. "147
Delcourt may well be right, as a matter of public policy. One wonders,
however, why the court felt it necessary to blaze a new public policy trail
by declaring a policy of quasi-judicial immunity for attorneys at litem
when a similar result might have been accomplished, at less expense to
children, by expansion of existing rulings on the scope of the general duty
owed by attorneys and other professionals to third parties. The Texas
Supreme Court recently ruled that psychologists in family law cases have
no duty to third party litigants; 148 even more recently, the court has ruled
149
that attorneys who draft wills are under no duties to the beneficiaries.
A ruling that an attorney ad litem has no duty to either parent would
seem to accomplish the principal purpose of a broad-based immunity,
while not excusing an attorney for shoddy representation of her client,
the child. Nonetheless, despite the fact that a "no duty" theory evidently
was the primary ground for summary judgment at the trial level,1 50 the
Delcourt panel chose to ground its decision on immunity. 15 1
In addition to decisions on third party liability and immunity, the Survey period also contains the usual run of cases illustrating particular examples of the setting of terms and conditions of conservatorship, and the
circumstances under which conservatorship will be modified. Wolfe v.
Wolfe' 52 is one of the more factually interesting, and undoubtedly the
most salacious, case of the Survey period, starring a doting (or mentally
unstable) mother who breast-fed her son until age four, then absconded
with him to New Zealand, and a father who after four years of forced
144. The Delcourt court apparently realized that its decision would cut off suits by children wronged by negligent actions of attorneys ad litem, distinguishing the typical Byrdtype lawsuit on that basis that "[iun
that particular situation it would be unfair to deny a
minor the ability to seek recourse for inadequate representation." 919 S.W.2d at 784.
145. TEX. FAM. CODE ANN. § 107.014(b) (Vernon 1996) (stating that, at a minimum, an
attorney ad litem must interview the child and individuals with significant knowledge about
the child).
146. Id. § 107.006.
147.
SAMPSON
&
TINDALL'S TEXAS FAMILY CODE ANNOTATED
320, § 107.104 com-
mentary (Aug. 1996 ed.).
148. See Bird v. W.C.W., 868 S.W.2d 767, 768 (Tex. 1994)(stating that there is "no professional duty running from a psychologist to a third party to not negligently misdiagnose a
condition of a patient").
149. See Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996)(stating that "[blecause the attorney did not represent the beneficiaries, we ...conclude that he owed no professional duty
to them").
150. See Delcourt, 919 S.W.2d at 780 (stating that the defendants moved for summary
judgment, first, because "they owed no duty to Delcourt").
151. The last substantive paragraph of the decision states that "[b]ecause we find
Silverman and Trusch were entitled to summary judgment based on immunity, we do not
reach the issue of no duty." Id. at 788.
152. 918 S.W.2d 533 (Tex. App.-El Paso 1996, writ denied).
1997]
PARENT AND CHILD
1257
celibacy developed a fondness for kinky sex with a paramour. The latter
relationship led to an evidentiary question discussed by the El Paso Court
of Appeals for about two printed pages under the heading "Exclusion of
1 53
Sexual Apparatus."'
More mundane entries in this year's crop of conservatorship decisions
include a case confirming a court's discretion to restrict the "competent
adults"'154 a possessory conservator can designate in his stead to pick up a
child for visitation 155 and a decision denying a trial judge's attempt to
override federal tax law 1 56 by denying a custodial parent the right to
claim tax exemptions for two of three children.' 57 In an Amarillo appeal
from a divided custody case,' 58 the court found justification for deviation
from the standard summer possession order 59 in a trial court's finding
1 60
that the two children would benefit from spending more time together.
The Houston Court of Appeals (Fourteenth District) also ruled that a
party who backs out of a mediated agreement to modify custody can be
forced to abide by that agreement, but only through proceedings to en6
force a contract.' '
153. See id. at 538-40. The court concluded that "[s]ome of the items are downright
nasty; all are in poor taste," and that their probative value therefore was probably outweighed by the potential for prejudice. Id. at 540. Moreover, since testimony had been
elicited as to the general nature of the material, any error in excluding the paraphernalia
was harmless. Id.
154. See TEX. FAM. CODE ANN. § 153.316(b) (Vernon 1996) (stating that "either parent
may designate a competent adult to pick up and return the child").
155. See Capello v. Capello, 922 S.W.2d 218 (Tex. App.-San Antonio 1996, no
writ)(refusing to permit a girlfriend or her family to pick up a child for visitation, despite a
claim of hardship).
156. Federal law provides as a general matter that the parent in whose custody a child is
for more than half the calendar year has the right to claim the tax exemption. See 26
U.S.C. § 152(e)(1)(1994).
157. See Lystad v. Lystad, 916 S.W.2d 617, 618 (Tex. App.-Fort Worth 1996, no
writ)(stating that "[w]e must narrowly construe deductions and exemptions provided in the
tax statutes").
158. Interest of Doe, 917 S.W.2d 139 (Tex. App.-Amarillo 1996, writ denied).
159. See TEX. FAM. CODE ANN. § 153.313(3) (Vernon 1996) (providing, in a standard
possession order for parents who reside more than 100 miles apart, for 42 days summer
visitation); § 153.252(2) (setting out a rebuttable presumption that the standard possession
order is in the best interest of the child).
160. While the Family Code provides that the standard possession order is rebuttably
presumed to be in the child's best interest, see supra note 159, the Code also provides that
"['it
is preferable for all children in a family to be together during periods of possession."
TEX. FAM. CODE ANN. § 153.251(c) (Vernon 1996).
161. Davis v. Wickham, 917 S.W.2d 414 (Tex. App.-Houston [14th Dist.] 1996, no
writ). The court noted the general rule that if consent is withdrawn before judgment, a
consent judgement cannot be rendered. Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex.
1951). A mediated settlement is enforceable "in the same manner as any other written
contract." TEX. CIV. PRAC. & REM. CODE ANN.§ 154.071(a) (Vernon Supp. 1996). The
court could, "after proper notice and hearing," have proceeded to render judgment, "not
[as] an agreed judgment, but [as] a judgment enforcing a binding contract." Padilla v.
LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). Because the trial court rendered judgment at a
hearing called "solely for the purpose of determining the merits of the motion ... to enter
the agreed settlement," the case was remanded for further proceedings. Davis, 917 S.W.2d
at 416.
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[Vol. 50
The Family Code requires that modification of sole managing conservatorship take place only if a party's circumstances have "materially and
substantially changed" and a new sole conservator would be a "positive
improvement. '162 The Code does not, however, define these terms, but
leaves their amplification to trial judges. In Marriageof Chandler,163 the
Amarillo Court of Appeals held that a mother's repeated moves (four in
three years), remarriage to a man with two children in need of care, a
new baby, and a generally uncooperative and hostile attitude toward her
ex-husband and his visitation rights combined to demonstrate grounds for
modification. 164 In Graves v. Graves,165 on the other hand, the Houston
Court of Appeals (First District) reversed an order modifying custody on
the ground that the non-custodial parent's affidavit did not meet the special heightened standard required of modification orders during the first
year after issuance. The statute usually requires a showing that the "present environment may endanger the child's physical health or significantly
impair the child's emotional development."' 166 The affidavit, however,
simply stated that because the father had been unable to communicate
67
with his child, he was "concerned that she may be in danger."'
Two decisions address problems peculiar to conservatorship by grandparents. The Family Code expresses a strong preference for parents in
custody decisions and imposes a heavy burden on nonparents. 68 A parent is to be appointed as managing conservator "[u]nless the court finds
that appointment.., would significantly impair the child's physical health
or emotional development.' 69 In Kirby v. Chapman,170 a case marred by
allegations of political bias on the part of the presiding judge, 17 1 the Fort
Worth Court of Appeals found the standard to be met. The child's grandparents and the deceased father's second wife obtained managing conser-
162. TEX. FAM. CODE ANN. § 156.101(a)(1), (2) (Vernon 1996).
163. 914 S.W.2d 252 (Tex. App.-Amarillo 1996, no writ).
164. The Waco Court of Appeals has disagreed with Marriageof Chandler because the
Chandler court applied a normal sufficiency of the evidence standard of review instead of
reviewing the trial court's decision solely for abuse of discretion. See Wilemon v. Wilemon,
930 S.W.2d 290, 294 (Tex. App.-Waco 1996, no writ). Nonetheless, since the Amarillo
court in Chandleraffirmed the trial court in any event, no harm was caused. The Chandler
court commented, in a footnote, that "[left for another day is the issue of whether those
appealing questions controlled by the abuse of discretion standard actually present basis to
secure reversal when they fail to argue, through point of error, that the discretion was
indeed abused." 914 S.W.2d at 253 n.1.
165. 916 S.W.2d 65 (Tex. App.-Houston [1st] 1996, no writ).
166. TEX. FAM. CODE ANN. § 156.102(b)(1) (Vernon 1996).
167. Graves, 916 S.W.2 at 69.
168. See, e.g., Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).
169. TEX. FAM. CODE ANN. § 153.131(a) (Vernon 1996).
170. 917 S.W.2d 902 (Tex. App.-Fort Worth 1996, no writ).
171. The judge, Randy Catterton, had been appointed to the bench in part through the
good offices of State Senator Chris Harris, the mother's ex-brother-in-law. The Fort Worth
Court of Appeals noted that Judge Catterton also had substantial support in the Tarrant
County family bar (some 40 or more attorneys took a bus to Austin to support his nomination), and that political appointment-like partisan elections-is simply one of the "facts
of life" in Texas law, not an independent ground for recusal. Id. at 908 (quoting Rogers v.
Bradley, 909 SW.2d 872, 882 (Tex. 1995), quoting in turn from Aguilar v. Anderson, 855
S.W.2d 799, 805 (Tex. Ap.-EI Paso 1993, writ denied) (Osborn, C.J., concurring)).
1997]
PARENT AND CHILD
1259
vatorship on a dual showing: First, the child was emotionally disturbed
and exhibited inappropriate sexual behavior. Second, the mother, a
forty-two-year-old doctor, demonstrated "poor dating choices. ' 172 She
had married and divorced once since the divorce in question, to a
psychotic fast food worker with sexual problems. She also had six intimate relationships in the three years preceding the modification hearing,
including one with a married psychiatric patient and another with a man
she met through a personals ad in The Dallas Observer.173 These factors
combined, in the court's opinion, to demonstrate that the child's need for
"as consistent and as unstimulating... an environment as he can get" was
174
unlikely to be met by continuing to live with the mother.
Interest of Ferguson175 demonstrates some intentional asymmetry in the
Family Code. The mother conceded managing conservatorship to the paternal grandparents, who had been caring for the children while the
mother attended school. After the mother landed a steady job and married, she sought to be named managing conservator of the children. The
trial court explicitly acknowledged that if the question were being decided for the first time, it would have appointed the mother managing
conservator pursuant to the statutory presumption. 176 However, since
the grandparents were managing conservators, the court believed the initial presumption had been replaced by the Family Code's requirement
that the mother show her appointment would be a "positive improvement."'1 77 This she did not do. The mother conceded long-standing case
law to the effect that the parental presumption does not control in a suit
to modify conservatorship, but argued that 1987 amendments strengthening the parental presumption now demand a different result. The Texarkana Court of Appeals concluded, however, that the amendments only
strengthened the initial presumption in favor of parents, and did not alter
178
the burdens in a motion to modify.
IV. SUPPORT
Under the uniform and federal acts for child support and custody
cases, 179 the preferred basis for initial jurisdiction is the child's "home
state.' 80 The "home state" is the state in which the child resided for the
172. Kirby, 917 S.W.2d at 913.
173. Id. at 912-13.
174. Id. at 914.
175. 927 S.W.2d 766 (Tex. App.-Texarkana 1996, no writ).
176. See supra note 68 and accompanying text.
177. See TEX. FAM. CODE ANN. § 156.203(2) (Vernon 1996).
178. In re Ferguson, 927 S.W.2d at 768.
179. See 28 U.S.C. § 1738A (1994) (Parental Kidnapping Prevention Act, hereinafter
PKPA); 28 U.S.C. § 1738B (1994) (Full Faith and Credit for Child Support Orders Act);
TEX. FAM. CODE ANN. §§ 152.001-.025 (Vernon 1996) (Uniform Child Custody and Jurisdiction Act, hereinafter UCCJA); TEX. FAM. CODE ANN. §§ 159.001-.902 (Vernon 1996)
(Uniform Interstate Family Support Act, hereinafter UIFSA).
180. See 28 U.S.C. § 1738A; TEX. FAM. CODE ANN. §§ 152.003,159.204 (Vernon 1996).
However, under the recently enacted Full Faith and Credit for Child Support Orders Act,
28 U.S.C. § 1738B, a court that had "subject matter jurisdiction" and "personal jurisdiction
1260
SMU LAW REVIEW
[Vol. 50
six months immediately preceding the initiation of the action. 181 If a
child support or custody decree is entered in accordance with the jurisdictional rules of these laws, the decree enjoys a sort of statutory full faith
and credit, 182 and the rendering court enjoys exclusive jurisdiction to
modify the subject rights and obligations between the parties. This system works reasonably well among the states of the United States, all of
which are bound by federal law, and all or most of which have embraced
the obligations and benefits of the uniform acts. 183 Texas even takes the
system a step further, by adopting the pertinent jurisdictional provisions
of the UCCJA as a basis for all suits affecting the parent child
84
relationship.1
Not all child custody or support cases, however, involve contests be-
tween U.S. citizens, residents or courts. In Texas custody and support
cases, an out-of-state decree might well be Mexican, or at least the contestants are more likely to hail from Mexico than from Montana. Two
recent Texas cases illustrate the application of the uniform laws in the
"international" context. While neither breaks important new ground in
international family law, each serves as a useful lesson and occasion to
consider Texas family law in the transnational context.
Flores v. Melo-Palacios185 involved a mother's effort to modify and enforce a Mexican child support decree or establish a new Texas decree.' 86
All three parties were citizens of Mexico, 18 7 but the mother and child
were clearly residents of Texas and the obligor father was at least argua-
bly a resident of Texas.' 88 The trial court apparently believed, errone-
ously, that it could not exercise personal jurisdiction over the father for
child support purposes because of his Mexican citizenship. It also may
have believed, equally erroneously, that it could not exercise subject-matter jurisdiction to enforce a Mexican decree, or that it lacked subject mat-
over the contestants" when it issued an order acquires exclusive and continuing jurisdiction
if that state is the child's residence or the residence of either of the contestants. Id.
§ 1738B(c), (d).
181. TEX. FAM. CODE ANN. §§ 152.002, 159.101 (Vernon 1996). But see infra note 190.
182. For a discussion of the otherwise uncertain availability of Constitutional full faith
and credit for child support decrees, see
HOMER CLARK, THE LAW OF DOMESTIC RELA-
750-54 (2d ed. 1988).
183. See Uniform Child Custody Jurisdiction Act Annot., Table of Jurisdictions
Wherein Act Has Been Adopted (1968)(listing all states); Uniform Interstate Family Support Act Annot., Table of Jurisdictions Wherein Act Has Been Adopted (1992)(listing 26
states).
184. TEX. FAM. CODE ANN. § 102.011 (Vernon 1996). However, a suit under the
UIFSA is not a "suit affecting the parent child relationship" for this purpose. Id. The
UIFSA carries its own terms of jurisdiction. See TEX. FAM. CODE ANN. §§ 159.201,
159.205.
185. 921 S.W.2d 399 (Tex. App.-Corpus Christi 1996, writ denied).
186. The Attorney General intervened in the action for the purpose of establishing a
Texas support order. In addition to joining in the successful appeal of the trial court's
dismissal on grounds of lack of jurisdiction, the Attorney General also successfully appealed from the trial court's striking of the Attorney General's plea in intervention. Id. at
404.
187. Id. at 401.
188. Id. at 401, 403.
TIONS IN THE UNITED STATES
1997]
PARENT AND CHILD
1261
ter jurisdiction over a child support dispute between two Mexican
189
citizens.
It is useful to note at the outset that there might have been subjectmatter jurisdiction under UIFSA to register or enforce the Mexican decree under that Act. UIFSA was written to apply to and provide enforcement of a foreign decree in some instances, much as it does in the case of
a decree of a sister state. The Act defines "State" (and thereby also defines such key terms as "home state," "initiating state," "issuing state,"
and "responding state"), to include "a foreign jurisdiction that has established procedures for issuance and enforcement of support orders that
are substantially similar to the procedures under this chapter." 190 Thus,
Mexico might qualify as a "state" wherever that term is used in UIFSA,
provided it has rules "substantially similar" to those of UIFSA. 191
Unfortunately, the Flores case never reached the issue of whether the
Mexican decree qualified for recognition under UIFSA. Instead, the
Corpus Christi court appears to have treated the case as a simple nonUIFSA action for an initial support decree, ignoring the alternative re1 92
quest for registration and enforcement of the existing Mexican decree.
As a suit for an initial child support decree, the action was subject to
the usual rules of jurisdiction for a suit affecting the parent-child relationship. Under the Texas Family Code, a court may exercise either status
jurisdiction over the matter under the rules of the UCCJA (for example,
"home state" jurisdiction), or it may exercise personal jurisdiction over
the nonresident respondent on any of the usual bases for personal juris193
diction, including personal service with citation in Texas.
Since the father in Flores was in fact served in Texas, the court had at
least one clear-cut statutory basis for exercising personal jurisdiction
against him. The father, however, argued that exposing him to the power
of the Texas courts, for the mere reason of his transitory presence in the
state at the time he was served with process, was a denial of due process.
The court of appeals found this argument foreclosed by the U.S. Supreme
Court's decision in Burnham v. Superior Court of California.194 There,
the Court rejected the due process argument and upheld the rule allowing
personal service of process on a nonresident during the nonresident's
189. Id. at 403. For a discussion of an old and long-since abandoned rule that jurisdiction to make a custody determination was limited to the state that was the child's domicile,
see Clark, supra note 182, at 456-62. However, this rule does not appear to have been
applied to child support adjudications. See supra note 182.
190. TEX. FAM. CODE ANN. § 159.101(19) (Vernon 1996) (emphasis added).
191. The Commissioners used Mexico and Canada as particular examples of nations
whose child support decrees might be registered and enforced under UIFSA. TEX. FAM.
CODE ANN. § 159.101 commissioners' commentary (Vernon 1996).
192. Were the father to invoke the exclusive and continuing jurisdiction of the Mexican
court as a defense against the prayer for a Texas child support decree, the court might be
forced to reconsider the applicability of the UIFSA. TEX. FAM. CODE ANN. § 205(d);
§ 159.205(d) (Vernon 1996).
193. See TEX. FAM. CODE ANN. § 102.011 (Vernon 1996).
194. 495 U.S. 604 (1990). See Flores, 921 S.W.2d at 402-03 (containing the Corpus
Christi court's discussion of this issue and the Burnham case).
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transitory presence. 195
In any event, the court found that the father in Flores was in fact a
resident of Texas, because he rented a Dallas apartment and lived there
with his current wife for one year, held a Texas driver's license showing
that apartment as his address, enrolled his other child in a Dallas school,
and attended a Dallas church. Thus, he was subject to service of process
as a Texas resident wholly apart from his physical presence in Texas at the
196
time he was served with process.
The defendant appears also to have argued that personal jurisdiction
alone was insufficient under Texas Family Code section 102.011, which he
interpreted to require both personal jurisdiction and status jurisdiction in
a suit affecting the parent-child relationship. This argument has some
support in a theory that certain status adjudications (such the dissolution
of a marriage) require that a party whose status is to be determined or
adjusted (or at least one of the parties whose relationship is to be adjudicated) must be a domiciliary of the forum state. 197 However, whether or
not domicile was ever required for status jurisdiction in any suit affecting
the parent child relationship, current uniform state and federal law very
clearly focuses on a child's residence or "home state" (where the child
198
has resided for six months) in custody and support actions.
Moreover, the Corpus Christi court interpreted the Family Code to allow a court to proceed based either on status jurisdiction consistent with
the UCCJA or personal jurisdiction consistent with the limits of due process. 199 The court reasoned that this interpretation is particularly appropriate in the case of child support actions, arguing that child support is
better viewed as a matter of personal indebtedness, governed by the
usual rules for personal jurisdiction, than as a status adjudication.2 00 In
this regard, the court appears to be correct, at least where the obligor's
status as a parent has already been determined.2 0 1 Thus, in most cases it
is enough to assert personal jurisdiction, even on the basis of mere transitory presence, in order to adjudicate an obligor's child support obligation.
Of course, the existence of other decrees or the pendency of litigation in
other jurisdictions may limit a court's power under either UIFSA 20 2 or
20 3
the Full Faith and Credit for Child Support Orders Act.
The other recent case with an international flavor is Arteaga v. Texas
195. Burnham, 495 U.S. 604.
196. 921 S.W.2d at 401-02.
197. See Clark, supra notes 182 and 189.
198. The latest of these laws, the Full Faith and Credit for Child Support Orders Act, 28
U.S.C. § 1738B, gives priority to the jurisdiction where the child happens to reside, regardless of how long the child has resided there, and regardless of the child's domicile.
199. 921 S.W.2d at 404. See also Creavin v. Moloney, 773 S.W.2d 698, 703 (Tex. App.Corpus Christi 1989, writ denied).
200. 921 S.W.2d at 404.
201. Clark, supra note 182, at 750-54; see also generally In re S.A.V., 837 S.W.2d 80
(Tex. 1992).
202. TEX. FAM. CODE ANN. § 159.001-.902 (Vernon 1996).
203. 28 U.S.C. § 1738B (1994).
1997]
PARENT AND CHILD
1263
Departmentof Protective and Regulatory Services,20 an international custody dispute. In Arteaga, the Texas Department of Protective and Regulatory Services petitioned to terminate the parental rights of two Mexican
nationals. The mother fled and disappeared with the child before the filing of the petition. The father, who remained to defend against the petition, argued that the district court lacked jurisdiction over the matter
because he and the child were Mexican nationals.
Under the UCCJA, as previously stated, jurisdiction is based on a
child's "home state," which is where the child resided for the six month
period preceding the initiation of the action. 205 Mr. Arteaga argued that
this rule should apply only to U.S. nationals, but the court disagreed. The
"home state" basis for jurisdiction, the court held, applies even in the
case of foreign nationals, at least where the parent and the child are in
fact residents of the United States. Perhaps anticipating a due process
challenge to the assertion of custody jurisdiction over foreign nationals,
the court also emphasized that Arteaga and his daughter had substantial
contacts with Texas, that in addition to their residency they had enjoyed
local social services, and that Arteaga had worked for fourteen years in
the United States. The court's decision does leave a large area of uncertainty for other foreign nationals whose connection with Texas is less substantial, and whose domiciles or residences remain firmly anchored in
their home countries. This is because a custody decree, unlike the sup20 6
port decree in Flores, is more likely to involve a status adjudication.
The court's decision also left the missing daughter's situation far from
completely resolved. If the child has returned to Mexico, and if she is
located there, a Mexican court might well deny recognition of the Texas
court's decision. However, Mexico has acceded to The Hague Convention on the Civil Aspects of International Child Abduction, with respect
to custody issues involving the United States,2 07 and any future conflict
between American and Mexican authorities would be resolved under that
law.
On a more mundane note, some recent cases address the proper calculation of child support. The Texas Family Code provides a two step system for the determination of child support. The first step involves the
application of a simple formula with respect to the first $6,000 of an obligor's "net monthly resources." Since most obligors have net resources
below $6,000, the inquiry usually ends here, and the simple statutory
formula (20% of net resources for one child, 25% for two children, etc.)
204. 924 S.W.2d 756 (Tex. App.-Austin 1996, writ denied).
205. TEx. FAM. CODE ANN. § 152.003(a)(1)(A) (Vernon 1996). When a party acting as
a parent removes the child from his home state during the six months preceding the initiation of the action, the state retains its status as the home state. Id. § 152.003(a)(1)(B).
206. See supra notes 182-83. Moreover, treaty and international law may govern a state
court's jurisdiction over foreigners in a custody dispute. See, e.g., Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 116 [hereinafter The
Hague Convention].
207. The Hague Convention, supra note 206.
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supplies the presumptive answer even with little or no evidence about the
child's actual needs. The resulting figure is only a presumptive amount,
and a court may consider other factors in increasing or decreasing that
20 8
amount.
If either party makes such a request, the Family Code requires the
court to make specific findings regarding its calculation of the presumptive amount, and if the court orders an amount at variance with the presumptive amount the court must also describe the specific factors it
considered. 20 9 For years the intermediate courts have held that the dis21 0
trict courts' failure to make such findings constitutes reversible error,
and in Tenery v. Tenery,2 11 the Texas Supreme Court confirmed this rule.
For an affluent obligor whose net resources exceed $6,000 per month,
the task of determining child support can be much more difficult and unpredictable. Having employed the guidelines to calculate the amount of
support due against the first $6,000 of net resources, the court must then
ask whether the resulting figure is sufficient to satisfy the child's "proven
needs." If not, the court must then determine the funds that would be
necessary to satisfy the child's additional needs, and it must allocate some
portion of these additional needs to the obligor in the form of additional
child support, after comparing the relative financial condition of the obligor and obligee parent. 2 12 The Code, however, is conspicuously unhelpful in defining what constitutes the "proven needs" of the child. For
example, on what basis should a court determine the appropriate lifestyle
for a child? Is a child entitled to an affluent lifestyle merely because the
obligor is affluent?
Scott v. Younts2 13 addresses the question of what qualifies as proof of a
child's "needs." In Scott, the obligor (who was never married to the
mother and apparently had never lived with the child) earned $436,400,
while the mother earned a comparatively minuscule $11,000 per year.
The father had been paying a mere $700 per month in child support when
the mother filed this action for additional child support far and above the
statutory formula amount ($1,200, or 20% of the obligor's first $6,000 in
monthly net resources). The district court awarded child support of
$2,500 per month, and the father appealed.
The "needs" of the child, the court of appeals began, are not limited to
"bare necessities of life."'214 In this case, the obligee mother presented
two types of "needs." First, she described current monthly expenses of
$2067.29 per month. Second, she described additional items she desired
208. See
TEX. FAM. CODE ANN.
§ 154.130 (Vernon 1996).
209. Id.
210. See Haney v. Haney, 834 S.W.2d 490 (Tex. App.-Houston 14th Dist.] 1992, writ
denied); Chamberlain v. Chamberlain, 788 S.W.2d 455 (Tex. App.-Houston [1st Dist.]
1990, writ denied).
211.
212.
213.
214.
932 S.W.2d 29 (Tex. 1996).
See TEX. FAM. CODE ANN. § 154.130 (Vernon 1996).
926 S.W.2d 415 (Tex. App.-Corpus Christi 1996, writ filed).
Id. at 420 (quoting Thomas v. Thomas, 895 S.W.2d 895, 896 (Tex. App.-Waco
1995, writ denied)).
1997]
PARENT AND CHILD
1265
but could not presently provide at her current income and with the existing level of child support.
The Corpus Christi Court of Appeals focused on three particular desired but currently unaffordable items in support of the award. The first
was counseling for the daughter's emotional problems which, the mother
testified, were the result of daughter's sense of estrangement from her
father. In addition, the mother sought funds for extracurricular activities
the mother believed would help to build the daughter's self-esteem. Finally, the mother testified that the daughter performed well in school,
and for this reason the mother believed that private school and a college
savings fund were important for fulfilling the daughter's potential. 2 15
The court found the mother's testimony sufficient to uphold the trial
court's award of $2500. It agreed that the request for money for a college
savings fund did not qualify as a need, because the law does not require a
parent to support a child beyond the age of 18 or graduation from high
school, whichever occurs later.216 However, the court agreed that the evidence supported the need for counseling, extracurricular activities and
summer camp. It rejected the father's argument that expert testimony
was required to prove that private schooling or extracurricular activities
were needs. The mother, as managing conservator, was competent to testify about these needs and her testimony standing alone was sufficient
even as to the need for professional counseling.
Children whose parents die, retire, or become disabled may be entitled
to their own social security benefits as survivors or dependents. 217 If a
child support obligor lives apart from his child, the custodial parent can
arrange to have the child's benefits paid directly to child's household.
Does this public support for the benefit of a child satisfy any part of the
obligor parent's duty of support? The answer, even after decades of experience under this social security scheme, is surprisingly muddled.21 8
For example, the Texas Family Code provides that an obligor's net resources are "all ... income actually being received, including ... social
security benefits," 2 19 but does not answer the question of whether this
includes benefits paid on the obligor's account but delivered to the child's
household. Interest of Allsup 220 represents a Texas court's first direct
confrontation with the issue. 221 The court's solution, which is to grant a
215. The court agreed that some items the mother asserted as needs were insupportable. These included a horse. Id. at 421-22 & n.9.
216. Id. at 422 n.10.
217. See 42 U.S.C. § 402 (1994).
218. Michael A. DiSabatino, Annotation, Right to Credit on Child Support Payments
for Social Security or Other Government Dependency Payments Made for Benefit of Child,
34 A.L.R.5th 447 (1995). For an early case addressing the problem, see Fuller v. Fuller, 360
N.E.2d 357 (Ohio App. 1976) (social security payments to mother for benefit of the child
may not be used by mother to discharge support obligation).
219. TEX. FAM. CODE ANN. § 154.062 (Vernon 1996).
220. 926 S.W.2d 323 (Tex. App.-Texarkana 1996, no writ).
221. The issue was at least introduced if not resolved in Lake v. Lake, 899 S.W.2d 737
(Tex. App.-Dallas 1995, no writ) (social security survivor benefits did not offset a contractual duty of child support owed by the obligor's estate); see also Block v. Waters, 564
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mandatory credit for social security retirement benefits received by a
child in the absence of a court order or agreement to the contrary, is an
unfortunately simple solution to a problem that, in the authors' opinion,
calls for a more tailored approach.
The specific facts in Allsup certainly beg for the resulting credit. The
father, retired and drawing social security benefits, claimed (though with
much dispute from the mother) that they had agreed to set his child support obligation at $360 per month because his social security benefits for
the benefit of the child were $360. After the divorce, the father continued to receive social security dependent benefits for the child and used
these benefits to fulfill his obligation to the child. Three years later, however, the mother exercised her right to redirect the payment of these benefits directly to her. She then sued the father for an additional $360 per
222
month in "unpaid" child support.
Unfortunately for the father's position, the prior "understanding" was
not in writing, either included in the order or made as a statement in open
court, and the mother denied the understanding. Thus, whether the father was entitled to credit depended on the effect of the social security
retirement benefits in the absence of any agreement or provision in the
order.
The district court granted the father a credit for the amount of the benefits received by the child, effectively fulfilling the father's obligation, and
the mother appealed. Finding little relevant authority from the Texas
courts, the court of appeals surveyed the decisions of other states and
found a variegated stew. In several states, courts have granted the obligor a credit; 223 in one, no credit; 224 and in two more, courts have granted
the trial judge some sort of discretion to count such benefits or not count
2 25
them at all.
The underlying reasoning of the first approach, granting a credit, is that
the child's entitlement to benefits derives from the parent, and the benefits represent earnings previously contributed by the parent by means of
payroll deductions. 226 The second approach, rejecting any credit, rests on
the argument that the entitlement to social security benefits is not a property right of the wage earner, and that the child's receipt of its own entitlement does not diminish the obligor's own benefits. Some proponents
S.W.2d 113 (Tex. Civ. App.-Beaumont 1978, no writ)(court of appeals, without explanation, ordered trial judge to calculate amount of support arrearages with credit for social
security benefits already received by children).
222. Allsup, 926 S.W.2d at 323.
223. Id. at 327 (citing cases from Alaska, Illinois, Indiana, New York, and Ohio). A
number of other states follow the same rule for the analogous situation of dependent disability benefits. See id. at 327 n.4.
224. See id. at 327-28 (citing In re Marriage of Haynes, 343 N.W.2d 679 (Minn. App.
1984)).
225. See id. at 328 (citing Children & Youth Servs. v. Chorgo, 491 A.2d 1374 (Pa. Super.
1985); In re Marriage of Hughes, 850 P.2d 555 (Wash. App. 1993)).
226. See Allsup, 926 S.W.2d at 327. See, e.g., Miller v. Miller, 890 P.2d 574 (Alaska
1995); see also DiSabatino, supra note 218.
1997]
PARENT AND CHILD
1267
of this approach also find some significance in the fact that the child or
custodian receiving the benefits would be responsible for any overpayment. 2 27 A third group holds that allowance of a credit is discretionary
with the trial court.
The Texarkana court of appeals found the first approach most persuasive, and held that "a parent has a right to receive credit for Social Secur'228
ity payments made for the child by reason of the parent's retirement.
The court further ordered that Mr. Allsup was entitled to a credit retroac229
tively and prospectively.
The court's holding undoubtedly did equity for the parties in Allsup.
But the key in Allsup, and the justification for the result, seems to lie less
in the political or economic philosophy of the social security system than
in the specific circumstances of the case. After all, the father was receiving those benefits on behalf of the child at the time of divorce, and it is
clear in retrospect that the court and the parties must have considered the
child's benefits as the father's resource for purposes of determining the
amount of the father's obligation. It was very likely not mere coincidence
that the amount of his support obligation equaled exactly the amount of
the benefits attributable to the child. The mother permitted the father to
receive the child's benefits for three years, in effect allowing the father to
use the child's benefits to fulfill the obligation. One could easily conclude
that the parties assumed the father's receipt of the benefits and delivery
of the same amount to the child, over a three year period, was the fulfillment of his obligation. The event that forced the parties back to court
was the mother's unilateral action redirecting the delivery of the child's
benefits from the father's household to her own. Her action to seek additional money was, under the circumstances, an effort to gain a windfall
doubling of the amount of child support for no reason other than a
change of address on a government check.
Yet the Texarkana court's stated general rule, "that a parent has a right
to receive credit for Social Security payments made for the child by reason of the parent's retirement," 230 may lead to less satisfying results in
other situations in which a credit will tend to undermine the underlying
intent of the parties' agreement or the court's order. For example, if an
obligor's eligibility (and the child's dependent eligibility) occurs after the
amount of the child support obligation is established, allowing a simple
credit to the obligor might result in a windfall. Depending on the circumstances, the total resources available to the obligor and his child may have
increased, but all or most of the increase may be enjoyed by the
obligor. 231
227. See also In re Marriage of Haynes, 343 N.W.2d 679 (Minn. App. 1984).
228. Allsup, 926 S.W.2d at 328.
229. Id.
230. Id. at 328.
231. Suppose, for example, that under the child support guidelines the obligor was
earning net resources of $1,000 a month and was paying $200 a month in child support.
TEX. FAM. CODE ANN. § 154.125 (Vernon 1996). Suppose further that the obligor retired,
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Although the Texarkana court's approach may be right for the precise
situation in which it was applied, it is questionable whether this approach
should serve as precedent for a variety of related scenarios. Should the
Texarkana rule be followed in the first instance in the calculation of an
initial support order? What if the initial order truly was issued without
any contemplation of dependent social security benefits and the availability of such benefits is an unexpected event? Should the court be permitted to modify the support obligation on grounds of a material and
substantial change of circumstances under Section 125.401? And, if so,
should the court routinely allow an entire credit or only a partial credit?
Or should the court merely consider the availability of such benefits as a
circumstance justifying adjustment of the support obligation under section 125.123? Should the courts take the same approach irrespective of
whether the social security benefits in question are for retirement or disability? It would be ambitious indeed to believe that Allsup provides the
answer for all these questions.
A somewhat related question was posed in Kirby v. Chapman.232 The
child's father was dead. The obligor mother was receiving social security
survivorship benefits on her son's behalf, and was ordered to turn them
over to the grandparent managing conservators. She argued that payment of these benefits should be viewed as child support payments, which
when calculated with her court-ordered direct child support payments
would have pushed her total payments over the statutory guidelines. The
Fort Worth Court of Appeals resolved the question by considering the
payments as "income for [the child] and not for his guardian recipient. '233 Accordingly, the payments would neither be added to the
mother's income nor credited against her support payments. The Kirby
court added, "We know of no authority, and have been cited to none, that
would authorize [the obligor mother] to ascribe [the son's] earnings as
child support payments on her behalf. ' 234 But, of course, Kirby issued a
few months before Allsup, so the Fort Worth court did not have the benefit of Texarkana's ruling. Moreover, because the payments in Kirby
would be attributed to the dead father's earnings, rather than the obligor
and the child began to receive $200 per month in benefits. If the obligor's own social
security benefits, private retirement and other resources still yielded $1,000, he would be
wholly discharged from his support obligation and be effectively $200 richer, but the child
would enjoy no gain whatsoever.
To avoid this result one must include the amount of the child's benefits in the amount of
the obligor's net resources. Under this approach the obligor's net resources after retirement would be $1,200, and if he paid 20 percent to the child his total obligation would be
$240, of which $200 would be satisfied by the child's benefits. Arguably this result is still
not fair because the obligor, who before retirement had $800 after paying child support,
would have $960 to keep for himself (a gain of $160) after retirement, and the child would
have $240, with a gain of only $40. In other words, the obligor still will have gained four
times as much as the child as a result of the child's benefits. This disparity results from the
fact that amounts included in the obligor's net resources yield only 20 percent to the child
under section 154.125.
232. 917 S.W.2d 902 (Tex. App.-Fort Worth 1996, no writ).
233. Id. at 914.
234. Id.
PARENT AND CHILD
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1269
mother's efforts, it is not at all certain that the result would have been any
different.
Until the 1995 amendments to the Family Code, the parties to a divorce
could make a private agreement regarding matters of child support, conservatorship and access, and if the court adopted the agreement, the parties could enforce it either as part of a judgment or as a contract. 235 In
1995, the Texas Legislature amended the law to eliminate the contract
remedy option, leaving as the exclusive remedy the enforcement of the
judgment. 2 36 Still, agreements made before the effective date (September 1, 1995) remain enforceable as contracts, and thus the requirements
for contract enforcement have a lingering importance.
One frequent issue has been the manner in which the parties create or
preserve their option to sue for breach of contract as opposed to seeking
enforcement of the order that resulted from the contract. In Bruni v.
Bruni,2 37 the parties reached an agreement regarding post-majority support, and the mother sought to enforce the father's obligation as a contractual matter. The district court and court of appeals both declined to
enforce the contract on the ground that the child support order did not
provide for enforcement of the terms of the agreement as a contract. The
lower courts relied on the Supreme Court's decision in Elfeldt v.
Elfeldt,238 which they viewed as denying the contract remedy for an underlying agreement without an express provision in the order adopting or
incorporating the agreement.
But in Bruni the Court distinguished Elfelt, and held that a contract
remedy is preserved where the agreement merely states that it will survive the entry of judgment until it has been fully performed. 239 The difference between the cases, the court observed, was that in Elfelt there
was no separately drafted agreement, and thus any basis for contract enforcement was either in the order or it did not exist. In Bruni, on the
other hand, the parties had reached, written and signed an agreement,
and the court approved the agreement by entering a separate order that
incorporated the key terms of the agreement. The agreement's express
provision for survival beyond the entry of judgment was all the language
that was needed to leave the parties their option of contract enforcement.
V.
ADOPTION AND TERMINATION
Adoption law was once a practice that seemed pedestrian, but regrettably is now frequently sensational. Owing perhaps to the national publicity generated in a few recent contested adoption cases, biological parents
and relatives are challenging adoption petitions and decrees as never
before.
235.
236.
237.
238.
239.
See Bruni v. Bruni, 924 S.W.2d 366, 367-68 (Tex. 1996).
See TEX. FAM. CODE ANN. § 153.007(c) (Vernon 1996).
924 S.W.2d 366, 367-68 (Tex. 1996).
730 S.W.2d 657 (Tex. 1987).
924 S.W.2d at 367-38.
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One example from the past year is Woosley v. Smith, 240 in which the
putative birth father, having admittedly signed an affidavit of waiver of
interest in child, changed his mind and sought custody of his biological
offspring. A year after having disclaimed his interest in the child, he filed
an action to invalidate both the decree terminating his parental rights and
another decree granting the child's adoption by his new parents.
The Woosley case is most important for its powerful statement of policy
in favor of preserving the adoption process against belated challenges by
fickle birth parents. The birth father asserted a number of technical defects in the waiver process and termination proceeding, but all were re-
jected by the district court. On appeal his arguments were reduced to
one: whether the court that terminated his parental rights inadvertently
"voided" its "final" decree against him by entering a second "final" decree that also terminated the rights of a previously overlooked possible.
father. The highly technical arguments surrounding this issue are better
treated in a survey of civil procedure than in a survey of family law. 241
However, the end result was affirmation of the judgment upholding the
termination and adoption decrees and a strongly worded statement of
policy in favor of preserving the finality of adoption:
[W]hen a parent voluntarily terminates this parent-child bond, the
best interests of the child become paramount. Once that child has
been surrendered ... for adoption, the safety, education, care and
protection of the child, not the contentment or welfare of the parent,
is of utmost importance .... Children voluntarily given up in compliance with the Family Code cannot be snapped back at the whim of
242
the parent.
This laudable policy, however, was not strong enough to prevent the
same court of appeals, including two of the same judges, 243 from holding
240. 925 S.W.2d 84 (Tex. App.-San Antonio 1996, no writ).
241. In brief, in the original termination proceeding court (or rather the adoption
agency that petitioned for termination and provided the order) overlooked that the birth
mother was married to another man, who was the marital (and therefore "presumed")
father. The original decree would have terminated Woosley's rights, but it would have left
intact the rights of the marital "presumed" father, the existence of which barred the child's
adoption by other parents. Thus, the adoption agency obtained the court's entry of a second order terminating the marital father's rights.
Citing City of West Lake Hills v. State, 466 S.W.2d 722 (Tex. 1971), Woosley argued that
the second decree had the effect of voiding the first decree, and that since the second
decree did not terminate his rights, his parental rights were revived by omission. The court
of appeals found a more pertinent line of authority stemming from Mullins v. Thomas, 136
Tex. 215, 150 S.W.2d 83 (1941) and Azbill v. Dallas County Child Protective Services, 860
S.W.2d 133 (Tex. App.-Dallas 1993, no writ), both ruling that the first decree prevails
over the second.
242. 925 S.W.2d at 88 (quoting Brown v. McLennan County Children's Protective Serv.,
627 S.W.2d 390 (Tex. 1982). The San Antonio court added, in a reprimand of its own, that
"we find it inconceivable that appellant would now attempt, when the child is three years
old, to take him from the only family he has known." Id.
243. Judges Chapa and Green participated in both Woosley and Sims. Judge Stone was
the third judge in Woosley, and Judge Hardberger was the third judge in Sims.
PARENT AND CHILD
1997)
1271
void the underlying adoption decree in Sims v. Adoption Alliance.2 " In
Sims the alleged defect related more directly to the integrity of the adoption process. At the time the birth mother voluntarily relinquished the
child, Texas law lacked any prescribed minimum waiting period between
the birth of a child and the mother's execution of a relinquishment. In
this case, the mother executed her relinquishment 26 hours after birth,
strictly in accordance with the law then in effect. During the same year,
however, the Legislature had enacted an amendment to require a waiting
period of 48 hours, 245 and the new law took effect on September 1, 1995.
This effective date was after the execution of the relinquishment in Sims,
but it was during the pendency of the termination proceeding and before
the entry of a termination decree. Because the Legislature provided that
the new law would apply to pending suits on September 1, the requirement applied to the relinquishment in Sims with destructive force.
The Adoption Alliance argued that retroactive application of the new
waiting period unconstitutionally affected the agency's rights with respect
to the child. 24 6 The constitutional ban on retroactive laws protects only
"vested" rights against such laws, and the court agreed with the Adoption
Alliance that a right need not rise to the level of a "property" right in
order to deserve such protection. 247 But only rights based on a "reasonable expectation" or involving "substantial reliance" are possibly
"vested" rights; in this case the court found the Adoption Alliance did
not reasonably rely on prior law in its decision to proceed with the termination and adoption that was based on a relinquishment taken in fewer
than the new statutory requirement of 48 hours. Although the law was
not strictly "in effect" at the time of the relinquishment, it had been enacted two months earlier, and its pending effective date left the agency
only two weeks after the relinquishment to gain a final order and avoid
application of the law. In passing, the court assumed that "an organization in the adoption business would have been aware of these legislative
changes including the 'pending' case requirement ....How can it be said
that a statute which the parties know will24change
in less than two weeks is
8
a 'likely basis for substantial reliance?"'
The ultimate premise of the court's ruling, however, is that the new
statute must be read to render the premature relinquishment untimely,
and that the law reasonably notified the public of its effect. The San
Antonio court believed that the statute was "unambiguous" in this regard, and allowed no room for any reasonable alternative interpreta244. 922 S.W.2d 213 (Tex. App.-San Antonio 1996, writ denied). By yet another coincidence, the Adoption Alliance was the licensed agency that processed the adoptions in
both Woosley and Sims.
245. Act of June 16, 1995 74th Leg., R.S. ch. 751, 1995 Tex. Sess. Law Serv. 214 (codified at TEx. FAM. CODE ANN. §161.103 (Vernon 1996)).
246. The Texas Constitution prohibits "ex post facto" and "retroactive" laws. TEX.
CONST.
art. I, § 16.
247. See Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966).
248. Sims, 213 S.W.2d at 217.
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tion.249 At the very least, however, the statute is quite vague regarding
the application of its effective date. The amendment that included the
effective date provision was a wide ranging reform that covered quite a
bit of ground, and its application to cases pending on the effective date
would not necessarily require reopening and repeating every otherwise
completed aspect of a proceeding. The relinquishment, for example, was
not only completed before the law's effective date, it was irrevocable
before the law's effective date. It is at least reason for pause that the
court's reading of this "unambiguous" law results in the revocation of an
irrevocable document.
The court's determination to ignore even the possibility of an alternative interpretation may have been motivated more by special circumstances of the case than by close reading of the law. Within a few days of
the execution of the relinquishment, the birth mother in Sims made her
intention to oppose the agency's termination and adoption petition absolutely clear. In response, the agency could have sought a new relinquishment (unlikely) or it could have accepted the fact that there was too
much risk to proceed. In retrospect, the agency's risky and futile race to
judgment, despite the birth mother's reasonably prompt objection, may
only have contributed to the San Antonio court's sympathy for the birth
mother.
On the whole, the Survey period was a relatively quiet one, so far as
cases involving termination of parental rights are concerned. The Texas
Supreme Court did issue one per curiam decision,25 0 reversing a decision
in which the Eastland Court of Appeals held evidence of extremely unsanitary conditions insufficient to justify termination of parental rights.
While both the Eastland and supreme court opinions leave much to be
desired, so far as a clear statement of the facts is concerned, 251 it seems
clear that the children habitually lived in very unsanitary conditions and
that the mother was incapable of doing much about it-being, as the
'252
court of appeals put it, "a young mother who was only a child herself.
The court of appeals found the evidence sufficient to place the children in
state care, but not to terminate parental rights, on the theory that "proof
of inadequate care" did not equate with "endangerment. 2 53 The
supreme court, however, stated that "neglect can be just as dangerous to
'254
the well-being of a child as direct physical abuse.
Several court of appeals decisions involving termination of parental
rights did issue. The results, however, are not very noteworthy. In
249. Id. at 215.
250. In re M.C., 917 S.W.2d 268 (Tex. 1996).
251. The court of appeals, for example, states in a footnote that the mother "did not
have the children with her when she was shot." In re M.C., 932 S.W.2d 35, 38 n.4 (Tex.
App.-Eastland 1995), rev'd, 917 S.W.2d 268 (Tex. 1996). Neither opinion, however, says
another word about the shooting.
252. In re M.C., 932 S.W.2d at 38.
253. Id.
254. In re M.C., 917 S.W.2d at 270.
1997]
PARENT AND CHILD
1273
one,25 5 termination of parental rights was sustained on evidence that both
parents used crack cocaine, that the father beat the mother in the presence of the children, and that the mother occasionally worked for the
father as a prostitute. Moreover, the mother violated an earlier agreement with the Child Protective Services that she remain sober and refrain
from letting the father live with the family. In another case,2 56 however, a
mediation agreement in which the father agreed that if he did not remain
sober, get a job, and get a residence, then "he does not need to have his
children returned to him" was not held to justify termination of parental
rights. Because the touchstone in a termination proceeding is the "best
interest of the children," the court felt it "irrelevant whether [the father]
'257
needs or deserves to have the children physically returned to him.
Finally, in a decision that seems intuitively obvious, the San Antonio
Court of Appeals ruled that parental rights could not be terminated on
the ground that the father had failed to support his child for the preceding twelve months, when he had only been adjudged the father four
2 58
months before the termination proceeding was initiated.
255. In the Interest of J.J., 911 S.W.2d 437 (Tex. App.-Texarkana 1995, writ denied).
256. Glover v. Brazoria County C.P.S., 916 S.W.2d 19 (Tex. App.-Houston [1st Dist.]
1995, no writ).
257. Id. at 20.
258. Djeto v. Texas Dep't of Prot. & Reg. Servs., 928 S.W.2d 96 (Tex. App.-San
Antonio 1996, no writ).